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
the Kings high way or open street but by the Kings Officer and speciall Writ because distresse is incident to service and that is due as from the fee and therefore by common right the same must be recovered from the fee and such as owe service in the same but the high way or open street are more properly a franchise belonging to the King although the soile happly may be the Lords and therefore it was an old law that they should be under the Kings safegard Ll. Inae Sit pax publica per communes vias and no violence must be there tolerated but by the Kings especiall Writ which presupposeth the especiall notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distresse for it must not be excessive and also in keeping thereof for if the owner will he may replevy the same according to the ancient course Marlb cap 21. Glanvil lib. 12 cap. 12. and the Sheriffe must grant replevy if it be demanded although formerly no replevy was without speciall Writ and yet they also not alwaies readily obeyed For the times were such as the Lords were bold with the Kings courts and Ministers and refused the order of the law now in such cases wherein the matter concerned contempt of the Kings authority a fine was set upon the offender but in case it concerned onely a tort done to the party he was amerced the one is called redemption because the penalty otherwise must lie upon the person Miror cap. 5. Sec. 3. if it be not redeemed by pecuniary fine the other is called amercement which is originally a satisfaction unto the party wronged by recompence out of the personall estate of the delinquent Distric Scac. Artic. mag cart cap. 12. Thirdly as touching the matter of the distresse it must not be of Plough beasts or sheep unlesse in case of dammage fesant if other distresse may be had for the Law had a care of such Cattell as were most of publique concernment and which was the maine stocke of subsistence so farre as justice would allow and therefore the unjust taking of any mans Cattaile by any person whatsoever is liable to the same penalties that unjust distresses are West 1. cap. 16. Fourthly concerning the using of the distresse it must not be sold no not in the Kings case till fifteen daies be past after it is taken Marlbr cap. 4. Distric Scac. nor must it be carried out of the County but it must be so impounded as the owner may come to feed it and it must be discharged if the owner give security of satisfaction before the returne of the Writ Artic. sup cart cap. 12. Fifthly the intent of the distresses must be that which is just and therefore not for other suit then by the feofment is due or else by prescription and in case many are joyntly seised Marlbr cap. 9. the suit shall be by one and the rest shall contribute cap. 22. Nor must any man be compelled to shew his title to his Land by distresse cap. 13. The Common pleas shall be holden in one certaine place The Office of Judge of the Common-pleas was in my opinion distinct and severall from that of the Crown pleas nor though one and the same man might execute both authorities doth it therefore follow that it was by one and the same power as if being Judge he had thereby power in all matters of the Common pleas and also of the Crown for though it be true that Bracton saith the King hath one proper court wherein are the chiefest Judges Capitales Just nostri which both by his own testimony and Britons also did heare and determine causes of all sorts yet is it true also that it was by appeale or Writ of errour as in case of false judgement and that the King had plures curias Marblr cap. 20. which doubtlesse had their proper worke and in the time of Henry the second its cleare that six were especially assigned for the Common pleas throughout the whole Realme and yet by another especiall Commission or Letters patents the same men might also have power to determine matters of the Crown as at this day in their severall circuits This law therefore doth not as I conceive worke any alteration but onely in this that whereas formerly the Judges of Common pleas attended on the Kings Court continually as all other Judges did and whither the King removed they did the like which was a great uncertainty and grievance unto the Commons Henceforth they are fixed to a certaine place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely cap. 14. and by the Iustices itinerant sent by the King or his chiefe Iustices The law was so declared in Henry the seconds time and was questionlesse put in practise so farre forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the Kings Court but the Justices must come down to them and yet in case of difficulty the bench where the Common pleas are holden must determine the matter and where the time in the Iter in one County is too scant the remanets shall be adjourned over to be tried elsewhere in that circuit which sheweth that the Judges itinerant had their time proportioned out to every County These trials also were so favoured Westm cap. 51. as in the then holy times of Advent and Septuagesima or Lent they might be tried which although was gained by prayer made by the King to the Bishops as the words of that law are concluded yet it shewes that the Parliament had so much light as to hold the time not inherently holy but meerely sequestred by the will of the Clergy The Plantiffs also in Mortdancester may be divers if there be divers heires of one ancester by one title Stat. Gloc. ca. 6. And if there be joyntenants and the Writ be against but one and the same pleaded Conjanct feofat An. 34. E. 1. Stat. Gloc ca. 1 the Writ shall abate but if joyntenancy be pleaded and the plea be false the defendant shall be fined and imprisoned And if in the action the verdict be for the plaintiffe he shall recover dammages cap. 15. Darraine presentment shall be taken onely in the common Banke Trials in the common bank or other Courts at VVestminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally availeable This might be one cause why the Titles of Churches were still retained at the common Bank when as all other rode circuit For that Churches affaires in those times were of high regard Speed of triall also was not little regarded herein for Justices by Nisi prius properly were but for inquiry till the Statute at Westm the second made them of Oyer
discipline Ll. Canut cap. 58. if they followed their rule which was made not by the arbitry of the Generall but by Parliament These amongst other scattered principles concerning Sea-affaires may serve to let us know that the Law-Martiall and that of the Sea were branches of the positive Lawes of the kingdome setled by the generall vote in the Wittagenmot and not left to the will of a lawlesse Generall or Commander so tender and uniforme were those times both in their Laws and liberties CHAP. XXIII Of the government of the Saxon Kingdome in times of peace and first of the division of the Kingdome into shires and their Officers IF the Saxon government was regular in time of warre how much rather in time of peace All great works are done by parcels and degrees and it was the Saxons ancient way in Germany to divide their Territory into severall circuits or circles and to assigne to each their severall Magistrates all of them ruled by one Law like one soule working in severall members to one common good Thus they did here in England having found the Land already divided into severall governments they likewise what they conquered divided into severall parts called Comitatus or Counties from the word Comes that signifies a companion and the Counties thence called are nothing but societies or associations in publique charge and service But the Saxon word is shire or share that is a portion or precinct of ground belonging to this or that person or great Town and bearing the name of that person or Town and sometimes of the scituation of the people as North or South folke East or South Sex or Saxons This division by the names seems to be of Saxon originall and though by the testimony of Ingulfus and other writers Seld. Tit. Hon. it might seem to be done by Alfred yet it will appeare to be more ancient if the reader minde the grant of Peter pence made by King Offa wherein is recorded the severall Diocesses and shires out of which that grant was made under the very same names that they own at this day M. Westm An. 794. and that grant was more ancient then Alfreds time by the space of 80 yeeres Each of these Shires or Counties had their two chiefe Governours for distributive justice of these the Sheriffe was more ancient and worthy Officer being the Lieutenant Sheriffs and ayded by the power of the County in certaine cases for his Commission extended not to leavy warre but to maintain Justice in that County and within the same and in this work he was partly ministeriall and partly judiciall in the one he was the Kings servant to execute his Writs in the other he regulated the Courts of justice under his survey Ll. Edw. c. 35. He was chosen in the County Court called the Folkmote by the votes of the Freeholders and as the King himselfe and the Heretock were intituled to their honour by the peoples favour Coroners The Coroner though in originall later was neverthelesse very ancient he was the more servant or Officer to the King of the two His worke was to enquire upon view of manslaughter and by indictment of all felonies as done contra coronam which formerly were onely contra pacem and triable onely by appeale Miror cap. 1. Sec. 13. As also he was to inquire of all escheates and forfeitures and them to seize He was also to receive appeales of Felonies and to keep the rolls of the Crown pleas within the County It s evident he was an Officer in Alfreds time Miror p. 300. for that King put a Judge to death for sentencing one to suffer death upon the Coroners record without allowing the delinquent liberty of traverse This Officer also was made by election of the Freeholders in their County Court as the Sheriffe was Fits N. Br. 163 164. and from amongst the men of chiefest ranke in the County and sworn in their presence but the Kings Writ lead the worke CHAP. XXIV Of the County Court and the Sheriffs Torne THe government of the County in times of peace consisted much in the administration of justice which was done in the publique meetings of the Freeholders their meetings were either in one place or in severall parts of the County in each of which the Sheriff had the mannaging of the acts done there Folkmote or County court The meeting of the Freemen in one place was called the Folkmote by the Saxons saving the judgement of the honourable reporter Coke instit 2. p. 69. and of latter times the County court the work wherein was partly for consultation direction concerning the ordering of the County for the safety and peace thereof such as were redresse of grievances election of Officers prevention of dangers c. and partly it was Judiciall Miror p. 147. in hearing and determining the common pleas of the County the Church affaires and some trespasses done therein but not matters criminall for the Bishop was Judge therein together with the Sheriffe and by the Canon he was not to intermeddle in matters of blood yet neither was the Bishops nor Sheriffs worke in that Court other then directory or declaratory for the Free-men were Judges of the fact and the other did but edocere jura populo Ll. Canut Miror cap. 1. Sec. 15. yet in speciall cases upon petition a Commission issued forth from the King to certaine Judges of Oier to joyn with the others in the hearing and determining of such particular eases Miror cap. 5. Sec. 1. But in case of injustice or errour the party grieved had liberty of appeale to the Kings Justice Nor did the Common pleas originally commence in the County court Ll. Canut Ll. Edgar unlesse the parties dwelt in severall Liberties or Hundreds in the same County and in case any mistake were in the commencing of suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preeminence Concil Brit. p. 197. tit 22. In those ancient times this County court was to be holden but twice a yeere by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings especiall Writ Ll. Edw. cap. 35 or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the free men of the County assembled to learne the Law to administer justice Ll. Edw. cap. 35 to provide remedy for publique inconvenience and to doe their fealty to the King before the Bishop and Sheriffe upon oath and in the worke of administring justice Ll. Edw. cap. 4. causes concerning the Church must have the precedency so as yet the Canon law had not gotten footing in England The other Court wherein the Sheriffe had the directory was in the meeting of the free men in severall
parts of the County and this was anciently Sheriffs Torne and now is called the Sheriffs Torne which simply considered is but a Hundred Court Miror cap. 1. Sec. 16. or the Sheriffs Torne to keep the Hundred Court It was ordered to be kept twice every yeere viz. at the Lady day and Michaelmas Ll. Edgar cap. 5 Ll. Edw. cap. 35 or soon after unto this Court all the Freeholders of the Hundred repaired and there they the Bishop and Sheriffe executed the same power and worke for kind that they did in the County Court Ll. Canut p. 2. cap. 17. In this Court all the suits in the Hundred court depending had their determination and others had their commencement and proceedings as well the pleas of the Crown as others Some have conceived it to be a County court or superiour thereto but there being no ground thereof I conceive it to be no other then a visitation of the County by parcels or in circuit CHAP. XXV Of the Division of the County into Hundreds and the Officers and Court thereto belonging COunties were too great to meet upon every occasion and every occasion too mean to put the whole County to that charge and trouble and this induced subdivisions the first whereof is that of the Hundred now and also anciently so called but as ancient if not more is the name Pagus for the Historian tels us that the Germans in the executing of their Lawes Tacitus a hundred of the free men joyned with the chiefe Lord per pagos vicosque and in raising of forces one hundred were selected ex singulis pagis which first were called Centenarii or Hundreders from their number but used for a title of honour like the Triarii And as a second hereunto I shall adde that testimony of the Councell at Berkhamsted which speaking of the reduction of suits from the Kings Court ad pagi vel loci praepositum in other places it s rendred to the governours of the Hundred or Burrough And at this day in Germany their Countrey is divided into circuits called centen or canton and centengriecht and the Hundredere they call Centgraven or Hundred chiefes Cluer lib. 1. cap. 13. whether for government in time of peace or for command in time of warre the later whereof the word Wapentake doth not a little favour Amongst these one was per eminentiam called the Centgrave or Lord of the Hundred and thereunto elected by the free men of that Hundred and unto whom they granted a stipend in the nature of a rent Malmesb. Reg. gest p 54. called Hundredsettena together with the government of the same The division of the County in this manner was done by the free men of the County who are the sole Judges thereof if Polydores testimony may be admitted and it may seem most likely that they ruled their division at the first according to the multitude of the inhabitants which did occasion the great inequality of the Hundreds at this day The government of the Hundred rested at the first upon the Lord and the Hundredars but afterwards by Alfred they were found inconvenient Ll. Alured cap. 4. because of the multitude and reduced to the Lord or his Bailiffe and twelve of the Hundred and these twelve were to be sworn neither to condemne the innocent nor acquit the nocent This was the Hundred court which by the Law was to be holden once every moneth and it was a mixt Court of common pleas and Crown pleas Ll. Edw. 35 Ll. Aetheldr 1. Ll. Aethelst 20 for the Saxon Laws order that in it there should be done justice to thieves and the triall in divers cases in that Court is by ordeale Their common plees were cases of a middle nature as well concerning Ecclesiasticall persons and things as secular Ll. Edw. cap. 32 for the greater matters were by Commission or the Kings Writ removed as I formerly observed Ll. Aetheldr cap. 1. Lindenbrog Ll. Allm. Saxon. all Freeholders were bound to present themselves hereat And no sooner did the defendant appeare but he answered the matter charged against him and judgement passed before the Court adjourned except in cases where immediate proofe was not to be had albeit it was holden unreasonable in those daies to hold so hasty processe and therefore the Archb. of Yorke preferres the Ecclesiasticall or Canonicall way before this Lastly in their meeting Concil Brit. p. 273. Tacitus Glossar 155. as well at the Hundred as County Court they retained their ancient way of comming armed CHAP. XXVI Of the Division of the Hundreds into Decennaries THis was the last subdivision of the County and that rested upon the persons and it was either not at all or not so observable as to be worthy of the Roman story and therefore may rather be thought an extract from Moses law introduced by Alfred or his direction I say this rested on the persons and not upon the place for though the Centeners were comprehended with certaine bounds yet the Decenners were not limited but onely within the limits of the Hundred And of these also it appeareth to me there were divers sorts for such matters of controversie that did arise amongst the Decenners if of greater moment were referred to the chiefer Justices which were appointed super decem decanes which I conceive were ten chiefe pledges and these might beare the names of the Centeners although they be not the Centgraven and the rather I incline thereto because in all probability there must needs be above one hundred Freeholders in Hundredo and all free men were Decenners Ll. Canut c. 19. that is ranked into severall tens each one being pledge for others good abearing and in case of default to answer it before the judge and in case of default of appearance his nine pledges should have one and thirty daies to bring the delinquent forth to justice If this failed then the chiefe of those Decenners by the votes of that and the neighbour Decennaries was to purge himselfe and his fellow pledges both of the guilt of the fact and of being parties to the flight of the delinquent And if they could not this do then were they by their own oathes to acquit themselves and to bind themselves to bring the delinquent to justice as soon as they could in the mean time to pay the dammage out of the estate of the delinquent and if that were not sufficient then out of their own estate but if the delinquents estate was sufficient the surplussage thereof remained with the pledges And lastly the Master of the family was a pledge for his whole family Ll. Edw. cap. 15 Ll. Canut c. 28 This was the Law of Decenners and may seem to be somewhat a rigorous law not onely in case of delinquency but also for their abode for none of them might depart from their dwelling without consent of his fellow pledges Ll. Alured cap. 33. Ll. Canut p. 2. cap.
law of Henry the first concerning the County court which reciteth it as a custome in his time used Ll. Hen. 1. c. 7. that the Bishop and Earles with other the chiefe men of that County were there present as assistants in directory of judgement And that in order are handled first matters of the Church Secondly Crown pleas Thirdly and lastly Common pleas however therefore the King spake faire they either acted not at all or so cooly as the current of the custome was too strong but most probable it is that the Kings spake faire till they were setled in their Thrones and afterwards pleased themselves for by the generall thred of story it may appeare that the Clergy in those times were more feared then loved and therefore riden with a streight reine The Prelacy on the contrary grew unruly yet too weake for the rugged spirits of the Norman Kings they are glad to be quiet and the Pope himselfe to drive faire and softly as judging it expedient potestatem Regalem mitius tractandam Greg epist l. 9. and continued that course and posture till the calmer times of Henry the first Eadmer hist l. 4 p. 95. wherein they mended their pace and got that without noyse which they had long striven for viz. the preeminence and presidency in the Synods though the King himselfe be present and if the Historian writeth advisedly the whole ordaining or legislative power for so runnes the stile or phrase of the author Archiepiscopi Episcopi statuerunt in praesentia Regis as if the presence of the King and his Barons and people were but as a great Amen at the common prayer after the old stampe to set a good colour upon a doubtfull matter to make it goe down the better How the Kings brooked this draught I cannot say but it hath made the kingdome stagger ever since and it may be feared will hardly recover its perfect wits so long as the brains of the Clergy and the Laity thus lie divided in severall Cels. CHAP. XLVIII Of the severall subservient jurisdictions by Provinces Marches Counties Hundreds Burroughs Lordships and Decennaries HAd the Normans owned no other title then that of Conquest doubtlesse their mother wit must needs have taught them the expediency of preserving the particular subservient jurisdictions of the kingdome intire and unquashed if they regarded either the benefit of their conquest or reward of their parteners and allies unlesse it should be allowed unto Conquerous to be more honourable for them to doe what they will rather then what is meet But hereof there is no cause of queston in this present subject for nothing is more cleare then that VVales enjoyed in the Conquerours time and for ages after him its ancient liberties Tribute excepted nor did conquest ever come so nigh to their borders as to trench upon the liberties of the Marches For as it had been a piece of state nonsence to have holden two peoples under conquest and their Marches in freedome or to preserve them in good neighbourhood by Marches which by the law of Conquest were made one so was it no lesse vaine if all had been once subdued by conquest to have raised up the liberties of the Marches any more And as they had lesse cause to have invaded the bounds and ancient limits and partitions of the Counties County courts so questionlesse had they so done they would have taken the old course of the Micklemote Eadmer hist l. 4. p. 96. as they did divide the Diocesse of Lincolne into two Diocesses by advice of the Bishops Princes and other wise and holy men Ll. Hen. 1. c. 6. and turned the Abby of Ely into a Bishops See But it was their wisdome to preserve the ancient Land-marks and no lesse both wisdome and care to continue their due priviledges and interests to each Every County had its Court Ll. Gulielm cap. 41. 42. and every Court its wonted jurisdiction No complaint must be to the Kings Court if right may be done in the County no distresse must be taken but by warrant from the County and that must be after complaint thrice made The County court must be called as our ancestors have appointed Ll. Gulielm cap. 64. such as will not come as they ought shall be first summoned and in case of default destrained at the fourth default the complainant shall be satisfied out of the distresses so taken and the King also for his fine These are the expresse Laws of the Conquerours own establishment Ibid. c. 64. the last of which also was confirmed by another expresse Law saving that he would allow but of two summons and two distresses before execution And as it was one principall worke that he undertooke to reduce the Lawes into course which had been intermitted during the violent times of his father and brother the first of whom never had liberty for reformation and the latter never had will so amongst other Laws he setled those concerning the County court Ll. Hen. 1. c. 7. namely That the Bishops Earles and chiefe men should be present for direction 2. That it should be holden once each moneth 3. That the Church matters should precede and then the Crown pleas And lastly the Common pleas besides some other particulars concerning pleading and proceedings in the handling of causes Neither were these causes of a petty regard onely but of greatest concernment One example I shall remember the reader of Epicil 197. and not recite in terminis but referre to Mr Seldens own pen. The occasion was this Odo the Conquerours halfe brother was by him made Earle of Kent and therewith had the gift of a large Teritory in Kent and taking advantage of the Kings displeasure at the Archbishop of Canterbury Stigand possessed himselfe by disseisin of divers Lands and Tenements belonging to that See Lanfrank the succeeding Archbishop being informed hereof petitioned to the King that justice might be done him secundum legem terrae And the King sends forth his Writ to summon a County court the debate lasted three daies before the free men of the County of Kent in the presence of many chiefe men Bishops and Lords and others skilfull in the Laws and the judgement passed for the Archbishop Lanfrank upon the votes of the free men This County court was holden by speciall summons and not by adjournment as was allowable by the Saxon Law upon speciall occasions And this suit was originally begun and had its finall determination in the County court and not brought by a Tolt out of the Hundred court as is supposed by an Honourable reporter nor by the ancient laws could the suite commence in the Hundred because the Lands and Tenements did lie in severall hundreds and Counties The upshot of all is that the County courts in those daies were of so great esteem that two of the greatest Peeres of the Realme one a Norman the other an Italian did cast a title
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
in the Lawes cap. 2. Rights of Tythes of a Lay fee or where the tenure is in question belong to the Kings court Pleas of debts by troth-plight belong to the Kings Court. cap. 3. These were Saxon Laws and do intimate that it was the indeavour of the Clergy to get the sole cognisance of Tythes because they were originally their dues and of the debts by troth-plight because that oaths seemed to relate much to Religion whereof they held themselves the onely professors The Kings Justice shall reforme errourrs of Ecclesiasticall Courts and Crimes of Ecclesiasticall person cap. 4. Appeales shall be from Archdeacons Courts to the Bishops Courts and thence to the Archbishops courts cap. 5. and thence to the Kings court and there the sentence to be finall No man that ever was acquainted with antiquity will question that these were received Laws in the Saxons time Constit at Clarindon nor did the Clergy ever quarrell them till the Normans taught them by curtesie done to Rome to expect more from Kings then for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergy for his Crowne and could not otherwise content them parted with this Jewel of supreame power in causes Ecclesiasticall to the Roman cognisance as hath been already noted but Henry the second would none of this cheate at so easie a rate This strooke so smart a blow as though the Popedome had but newly recovered out of a paralitique Schisme yet seeing it so mainly concerned the maintenance of the tripple Crown Alexander the Pope having lately been blooded against a brave Emperour made the lesse difficulty to stickle with a valiant King who in conclusion was fain to yeeld up the bucklers and let the Pope hold what he had gotten notwithstanding against this law and all former Law and custome And thus the Popes supremacy in spirituall causes is secured both by a recovery and judgement by confession thereupon Constit at Clarindon The King shall have vacances of Churches cap. 6. and power to elect by his secret Councell The party elected shall doe homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custome not altogether against reason although not suitable to opinion of many yet we meet two alterations of the ancient custome First that the election shall be by the King and secret Councell whereas formerly the election of Bishops and Archbishops was of such publique concernment as the Parliament tooke cognisance thereof and that which was worse a Councell was hereby allowed called a secret Councell which in effect is a Councell to serve the Kings private aimes and unto this Councell power given in the ordering of the publique affaires without advice of the publique Councell of Lords which was the onely Councell of state in former times and thus the publique affaires are made to correspond with the Kings private interest which hath been the cause of much irregularity in the government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unlesse by practise in Stevens time when as there was little regard of the one or the other Nor doth it concurre with the file of story that it should be inserted within these constitutions Constit at Clarindon seeing that writers agree it was the chiefe cause of quarrell between him and Becket who refused submission without the clause and at which the King stooke with the Archbishop for the space of seven yeeres which was six yeeres after the Constitutions were consented unto and concluded upon cap. 7. No Clergy man or other may depart the Realm without the Kings licence It s a law of Nations and must be agreed on all hands that no reason of state can allow dispensations therein especially in a doubtfull government where the Supremacy is in dispute and this the wilfull Archbishop never questioned till he questioned all authority but in order to his own for but the yeere before when he went to Turonn to the generall Councell upon summons M. Paris he first obtained licence from the King before he went No sentence of excommunication or interdiction to passe against the Kings tenant or any minister of state cap. 8. without licence first had of the King or his chiefe Iustice in the Kings absence Till the Conquest no Excommunication passed without warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons Constit at Clarindon and the Clergy having gotten the upper hand in Councels made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon vid. cap. onely as well the Normans as untill these times Kings have saved their owne associates from that sudden blow and upon reason of religious observance least the King should converse with excommunicate persons ere he be aware The Laity are not to be proceeded against in Ecclesiasticall Courts cap. 9. but upon proofe by witnesses in the presence of the Bishop and where no witnesses are the Sheriffe shall try the matter by Iury in the presence of the Bishop A negative law that implieth another course was used upon light fame or suspition ex officio although the oath at that time was not borne into the world and that all this was contrary to the liberty of the Subject and law of the Land and it intimates a ground of prohibition in all such cases upon the common law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath cap. 10. or baile to stand to the judgement of the Church Upon the taking and imprisoning of the party excommunicate Constit at Clarindon the course anciently was it seemeth to give pledge to stand to order of this the Bishops were weary soon as it seemeth and therefore waved it and betooke themselves to other inventions of their own viz. to bind them by oath or baile both which were contrary to law for no oath was to be administred but by law of the kingdome nor did it belong to the Ecclesiasticall laws to order oathes or baile and therefore this law became a ground of prohibition in such cases and of the Writ de cautione admittenda cap. 11. Persons cited and making default may be interdicted and the Kings Officer shall compell him to obey If the Kings Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the processe in the Spirituall Courts was to be regulated according to Law nor did it lie in the power of such Courts to order their own way or to scatter the censure of excommunication according to their own liking This together with all those that foregoe the Archbishop upon his repentance absolutely
this day hold the last in custome to all intents whatsoever The last branch provideth the remedy to recover to the heire his possession in case it be detained either through doubtfulnesse of age of the heire or his title and it directs the issue to be tried by twelve men This triall some have thought to be of Glanvils invention and it may well be that this triall of this matter as thus set down was directed by him yet he useth often in his booke the word solet and in his preface saith that he will set down frequentius usitata and its past question but that the triall by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the widdow of the tenant whose dower is not onely provided for but her reasonable part of her husbands personall estate The originall hereof was from the Normans and it was as popular as that of Wardships was Regall and so they made the English women as sure to them as they were sure of their children The Justices shall by Assize try disseisins done since the Kings 10. comming over Sea next after the peace made between him and his sonne This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that worke which formerly belonged to the County courts Glanv lib. 13. cap. 33. and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the writ is from the Kings last voyage or going into Normandy Justices shall doe right upon the Kings writ for halfe a 11. Knights fee and under unlesse in cases of difficulty which are to be referred to the King The Justices itinerant ended the smaller matters in their circuits the other were reserved to the King in his bench Justices shall inquire of Escheates Lands Churches and 12. women in the Kings gift And of Castle guard who how much and where So as the Judges itinerant had the worke of Escheators and made their circuits serve as well for the Kings profit as Justice to the subjects They used also to take fealty of the people to the King at one certaine time of the yeere and to demand homage also These matters of the Kings Exchequer made the presence of the Judges lesse acceptable and it may be occasioned some kind of oppression And as touching Castleguard it was a tenure in great use in these bloody times and yet it seemeth they used to take rent instead of the personall service else had that enquiry how much been improper 13. Of a tenants holding and of severall Lords That one man may hold severall lands of severall Lords and so owe service to them all is so common as nothing can be more neverthelesse it will not be altogether out of the way to touch somewhat upon the nature of this mutuall relation between Lord and Tenant in generall that the true nature of the diversity may more fully appeare The foundation or subject of service was a piece of land or other tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the tenant undertooke to performe service to the Lord Glanv lib. 9. cap. 4. and the Lord undertooke protection of the tenant in his right to that tenement The service was first by promise solemnly bound either by oath which the Lord or his deputy by the common law hath power to administer as in the case of fealty in which the tenant bound himselfe to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the tenement so given or otherwise by the tenants humble acknowledgement and promise not onely to performe the services due but even to be devoted to the Lords service to honour him and to adventure limbe and life and to be true and faithfull to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to each For though it be true that by promise of being the Lords man a generall service may seem to be implied yet in regard that it is upon occasion onely of that present tenure it seemeth to me that it is to be restrained onely to those particular services which belong to that tenement and therefore if that tenement be holden in soccage although the tenant be bound to homage yet that homage ties not the tenant to the service of a Knight Lit. lib. 2. cap. 5 nor contrarily doth the homage of a tenant in Knight service tie him to that of socage upon the command of his Lord though he professeth himselfe to be his man Nor doth the tenants homage binde him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for severall tenements Glanv lib. 9. cap. 1. Lib. 7. cap. 10. and these two Lords be in warre one against the other the tenant must serve his chiefe Lord of whom the capitall house is holden or that Lord which was his by priority who may be called the chiefe Lord because having first received homage he received it absolutely from his tenant but all other Lords receive homage of such tenant with a saving of the tenants faith made to other Lords and to the King who in order to the publique had power to command a tenant into warre against his own Lord. If therefore he be commanded by the King in such cases unto warre he need not question the point of forfeiture Glanvil lib. 9. cap. 1. but if he be commanded by a chiefe of his other Lords into warre against a party in which another of his Lords is engaged his safest way is to enter upon the worke because of his allegiancc to that Lord yet with a salvo of his fealty to that other Lord. Ibid. cap. 4. But in all ordinary cases tenants and Lords must have regard to their stipulation for otherwise if either breake the other is discharged for ever and if the fault be in the tenant his tenement escheats to his Lord and if the Lord faile he loses his tenure and the tenant might thence forth disclaime and hold over for ever Neverthelesse the Lords had two priviledges by common custome belonging to their tenures which although not mentioned in the stipulation were yet more valuable then all the rest the one concerning matter of profit the other of power That of profit consisted in ayds and reliefe The ayds were of three kinds Ibid. c. 8. one to make the Lords eldest sonne Knight the other to marry his eldest daughter the third to helpe him to pay a reliefe to his Lord Paramont which in my opinion
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
Circumspect agatis for in such cases the Ecclesiasticall Judge hath cognisance notwithstanding the Kings prohibition It s therefore neither grant nor release but as it were a covenant that the Clergy shall hold peaceable possession of what 〈◊〉 had upon this ground that the Kings prohibition hath no place in such things as are meerly spirituall So as hereby the Clergy got a judgement against the Crown by confession and an estopell upon this maxime that spirituall things belong to spirituall men into which ranke the Kings person cannot come thus thought they but what are spirituall causes and why so called are they such as concerne spirituall persons and things this was the old way marke but if we bring into this Category Adultery Fornication Incest c. we shall marre all Linwood tels us that mere spiritualia are such as are sine mixtura temporalium there may be somewhat in this though I cannot finde it nor can I make out the sence of the terme any other way but to limit it to such things which by common custome the Ecclesiasticall Judge had cognisance of for otherwise neither King nor law ever intended it to be expounded by the Canon nor was it the intent of this Writ Law or Licence call it what you will thus to conclude as the particulars following will manifest Fornication Adultery and such like punished sometimes upon the body and sometimes upon the purse These crimes the Saxons punished by the temporall power as I have already shewed The Normans continued this course if we may believe the Conquerours lawes which gave the fine in such cases to the Lord of the delinquent Ll. Gulielm cap. 14 19 371. And it is confessed that Henry the first and the second continued it as the Clergies own complaint just or unjust doth witnesse And what course was holden in the times of King Steven and John is to me unknown M. Paris addit fo 201. art 28. nor is it much to be regarded seeing the latter did he cared not what and the former to gaine the good will of the Clergy regarded not what he did The custome therefore cannot be made good for the Clergy much lesse to punish the bodies of freemen in such cases it being contrary to the grand Charter never asked by the Clergy formerly nor no complaint before now for deniall for my part therefore I shall not apprehend it of a higher nature then the Kings Writ which in those daies went forth at randome if the 44th Article of the Clergies complaints foregoing be true It be 〈◊〉 so contrary to the common sence of Parliament to give the bodies of the free men to the will of the Clergy to whom they would not submit their free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerke Defamation to reforme not to give dammage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the valew Mortuaries due by custome A pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the third who was King but yesterday as the Articles of complaint formerly set down doe manifest Nor had the Clergy ever better title then connivance of some such favourites as King Steven whose acts may peradventure be urged against Kings but not against the people unlesse their owne act can be produced to warrant it The learning in the Princes case wil I suppose admit of a difference Coke lib. 8. for it can never be made out that the Kings Councell in Parliament was the Magnum concilium Regni but onely the house of Lords and therefore whatever passed in Parliament by their onely advice might binde the King but could never reach the Commons nor their liberties And thus the grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it selfe of that which was originaly custome And therefore this law however countenanced can never be concluded to be other then a permission not onely because it was never the act of the Commons of England but because its contrary to the liberty of the free men and it s beyond all imagination that the Commons should out themselves from the protection of the Common law and yoke themselves their free holds and estates under the bondage of the Canons nor ought such a construction to be admitted without expresse words to warrant it As for the conclusion it is much worfe and not onely dishonourable to the King in binding his armes from protecting his Subjects by the Common lawes and so in some respects making them outlawes but dishonourable to it selfe whiles it makes prohibitions grounded upon Laws to be nullities by a late tricke of non-obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergy and thus are all set at liberty from any rule but that of licenciousnesse Neverthelesse this Law did thrive accordingly for we finde scarce any footsteps in Story of any regard had thereof till it became gray headed For it was not long ere the King stood in need of money and was necessitated to try the good wils of the Clergy more then once this occasioned them to be slow in answer and in conclusion to deny that they should ayd the King with any more money Antiq. Brit. vit Winchelsy Papa inconsulto The King hereupon disavowes the Clergy and leaves them to the Romish oppressions which were many and then the Clergy rub up all old sores and exhibite their complaints to their holy Father Baronus Annal An. 1306. to this effect 1. That the Kings Justices intermeddle in testamentary causes accounts of Executors and cognisance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the Kings carriages That the Kings Mils were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their goods were seised till their accounts were made That Ecclesiasticall possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the Kings Justices tooke cognisance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Churchyards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the Kings court for crimes and being acquitted the informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the Kings court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are inlarged in
like manner 11. That debts between Clerks due are determined in the temporall courts 12. That Bishops are compelled by distresse to cause Clerks to appeare in Lay courts without cause 13. That the Church looseth its right by the ceasing of rent or pension by the space of two yeeres 14. That Nuns are compelled to sue in the Lay courts for their right in possessions befalling by decease of their kindred 15. That Churches are deprived of their priviledges till they shew Quo warranto they hold them 16. That Ecelesiasticall Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusals of Clerks presented are examined in the Lay courts 18. That patrons of Religious Houses do oppresse them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay courts 20. That the King suffers his Livings to be vacant for many yeeres 21. That the Clergie are wronged by the Statute of Mortmaine Here 's all and more then all that 's true and more then enough to let the reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtaine was to be attributed to the resolution of the Laity and not to any neglect in themselves for the Archbishop died in the service and its thought that grief for these maters was no little cause thereof But the times within a while grew troublesome Antiq. Brit. and the King in pursuit of the French warres being unadvised in in his way angred the people by his arbitrary levies of men and money Articuli cleri as it brought forth a State scoule little inferiour to a quarrell And to pacifie the Clergy he granted them the Writ de consultatione habenda in all matrimoniall and testamentary cases Stat. de consul tat 24. E. i. which were of their least doubted priviledges and this qualified the first Article of complaint next foregoing if such cause they had of complaint and this was all that the Clergy got at Edward the firsts hands Edward the second was a man that was neither well affected to Rome nor weake in spirit and yet so unhappy that his way neither promised good successe nor ever had it and so he became a servant unto the humours of his servants to keep his head above water but especially after he was chased by the Scots and quite out of breath he cals for help of all but first of the Clergy and bespeakes them with the Ordinance of Articuli cleri wherein he gives some satisfaction to the complaints formerly mentioned which it seems by Baronius were exhibited in Parliament Ecclesiasticall cognisance extendeth unto Tythes Oblations cap. 1. and Mortuaries and to pecuniary recompence In the first times neglect or deniall of Church-duties was punished in the Kings court by fine Afterwards the Bishop was joyned in that worke Ll. Alfred c. 9. Ll. Edw. cap. 6. and the tythable goods were seised eight parts whereof was taken to the Lords and the Bishops use by moities a ninth part left to the owner and the tenth to the Church Ll. Canut c. 8. nor had the Bishops any peculiar Courts of cognisance of causes till the times of the Normans nor as yet in those times had they power to all intents for though it be true that the Roman tribute of Peter-pence was allowed by the Conquerours law to the Bishops court Ll. Gul. 20. cap. Spicileg 180. yet we finde no law for Tythes and other profits to be recovered by the Ecclesiasticall court till about the end of Henry the seconds reigne or King Stevens time for at a Councell at London in Henry the seconds time it was ordained that three summons in the Popes name should be made to such as payed not their Tythes Binius Tom. 7 fo 661. An 1173. and in case they then refused they should be anathema and after that time in a Councell at Oxford under Steven Archbishop of Canterbury it was decreed that the Laity should be intreated first to pay their Tythes Baronius Annal. 1222. cap. 19. and then if necessity require that they should be compelled by Ecclesiasticall censure so as their power crept up by degrees in recovering of Church-duties as it did in testamentary matters and at length Henry the third worne and spent with the Barons warres about his latter end yeelded to Boniface the Archbishop his importunate demands and first gave liberty to the Clergy to be their own Judges and yet the Lay Judges although divers of them were Clergy men did not suddenly forbeare till this law came which gave some satisfaction to the first and fourth Articles of complaint foregoing Ecclesiasticall cognisance extendeth not to a fourth part of the Tythes of any Living cap. 2. nor to pecuniary mulcts for sinne saving by way of commutation The complaint of the Clergy in Henry the thirds time was against the Kings prohibition in case of Tythes indefinitly for in those times afterwards in Edw. the firsts time the Kings court had the cognisance of all Tythes and therefore in the Statute of VVestm 2. c. 5. the Writ of Indicavit was allowed in case of right of any portion of Tythes yet the Church still gained ground and about or before the death of Edward the first the Temporall Judge had yeelded unto the Clergy the cognisance of a portion of Tythes under the value of the fourth part Artic. 1. for in the Article next foregoing the Clergies complaint was that the Kings Justices held cognisance of the fourth part here they were confined thereto by this law which the Clergy could never remove For violence done to Clerks the offender shall render dammage in the Kings Court but Excommunication cap. 3. Penance and Commutation shall be in the Bishops court The Canon law had an ancient claime to the Protection of Clerks both as touching their persons and estates and prevailed so farre as they were thereby imboldned to offer violence unto others But as I formerly shewed by a Law in Henry the seconds time the Temporall Judge resumed his originall power and this became a sore evill between the Clergy and Laity for though it were allowed that Clerks should not be sued but before the Ecclesiasticall Judge in such cases yet it was no warrant for the Laity likewise to be called before the Ecclesiasticall Judge in such cases and therefore the Clergies complaints shew that the matter was doubtfull and that the Lay Judge generally maintained his jurisdiction although sometimes he disclaimed it as it may appeare in the case of a trespasse in the nature of a riot committed upon the priory of St Johns of Jerusalem in the seventh yeere of Henry the third when as it was adjudged per curiam that it belonged to the Ecclesiasticall court to punish Fits Harb 7 Hen. 3. prohibition 30 But
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
about these times and therewith ended both the worke and common use of the ancient iters and yet all these later courts joyntly considered have not the like comprehensive power that the iters had for they had the power of hearing and determining all causes both of the Crown and Common-pleas albeit in a different manner that is to say in the first times promiscuously united into one and the same person but soon after the Norman times and more clearly in the time of Henry the second that power was divided into severall persons some sitting upon the Common pleas others upon the Crown pleas The Judges of these journying courts were specially assigned by the King as in the case of the Gaole-delivery or setled by the Law upon the Judges of both benches at Westminster as in case of oyer and terminer Westm 2. ca. 29 and of the Assizes or Nisi prius saving that in the last case they were associated with Knights in the Counties for the taking of Assizes Ibid. c. 30. Now concerning the Courts that were setled some were setled or annexed to the Kings personall residence as the Chancellours Court for in these times it began to have a judiciary power of eminent stature and growing out of the decayes of the great chiefe Justice of England Then also the Kings bench was annexed by the same Law unto the Kings Court or personall residence Fleta Artic. sup cart cap. 15. as it anciently ever had that honour although it seems the endeavours were to make it like the Common pleas in that particular Another and last court that was setled in this manner was the Marshals court which in the originall onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places 5 E. 4 fo 129. because the Kings attendants were many in those times when as the Courts of justice continually attended on his person and this precinct was called the Vierge and all cases of debt and covenant where both parties were of the Houshold Artic. sup cart cap. 3. and of trespasses vi armis where one of them was of the houshold were handled in the court of the Verge or the Marshals court And inquests of death within the same shall be taken by the Coroner of the County with the Coroner of the houshold Other Courts were rurall and affixed also to some certaine place either of the County or Town or other particular place That of the County suffered in these times great diminution even almost to destruction by a Law restraining the power thereof onely to trespasses of 40 s. value or under Stat. Gouc cap. 8. for though formerly the Kings justices incroached upon the County courts and contracted suits before themselves which by the ancient law they ought not yet it was ever illegall and the County courts held their right till this law was made which kept under those inferiour Courts and made them of lesse account then formerly Neverthelesse the Kings Justicies or Writ to the Sheriffs oftentimes inableth the inferiour Court to have cognisance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations West 1. cap. 23. Faires and Markets viz. that no person should be sued in any of them which was not a debter or pledge there CHAP. LXIX Of Coroners Sheriffs and Crown pleas Coroners Westm 1. ca. 10 COreners shall be chosen in the county from the wisest greatest and chiefe men of the country Of these Officers formerly hath been spoken as touching their election qualification and worke this Law brought in no change of any former Law but onely of a former custome gained by these degenerating times which brought men into place that were farre unfit who otherwise of poore and mean condition maintained themselves by bribery and extortion and being found guilty had not sufficient to give recompence This law therefore revives the first law and hold these men to their worke of taking inquests and appeales by indenture between themselves and the Sheriff and these were to be certified at the next comming of the Justices Sheriffs Artic. sup cart cap. 9. The Free holders in every county if they will shall elect their own Sheriff unlesse the Sheriffwicke be holden in see This was indeed the ancient custome as the Officers of the Kingdome were eligible by the Common-councell of the Kingdome Miror cap. 1. Sec. 3. Stat. de vic 9 E. 2. so were also the Officers of the County chosen by the County But within a few yeeres in the time of Edward the second comes another law that the Sheriffs shall be appointed by the Chancellor Treasurer Barons of the Exchequer and the Justices which Law was made in favour of the people as by the file of that Statute doth more fully appeare for though at the first blush it may seem a priviledge lost by the free men that these great men should have the election of the Sheriff yet it proved a great advantage to the common quiet of the people in those times of parties and was so apprehended Otherwise as the case stood in those daies of Edward the second it was no time for him to gaine upon the peoples liberties Nor had the Statute of Articuli super cartas whereof we now treat been penned with these words if they will and questionlesse in these daies we now live in if the people had but a little taste of this seeming liberty of electing Sheriffs in the County court as formerly it was used it would be soon perceived that the election of these chiefe Officers were better disposed in some other hand if rightly pursued Homicide by mis-fortune shall not be adjudged murther Chancemedly Marlbr cap. 25. That the Saxons made difference between homicide by misfortune and that which was done felleo animo or with a spirit of gall formerly hath been shewed now what it was that altered the case I cannot say unlesse the violence cruelty and oppression of the times formerly all kind of manslaughter was finable I mean in the Norman times and so might more rationally be ranked into one degree but now the punishment began to change from forfeiture of estate and losse of member to death and forfaiture of estate and therefore it was more necessary to make the difference in the penalty seeing in the fine formerly a difference was observed and this difference to assert by a Law that might limit the invenomed spirits of the Judges of those daies Robbery Robbery punished with death This crime hitherto was punished by fine and losse of member at the utmost but is now made capitall punished with death One example whereof and the first that story maketh mention of we finde of an Irish Nobleman in the daies of Henry the third who suffered death for piracy and it was a law that then though rigorous yet seasonably was contrived to retard the beginnings and hasten the conclusion of a civill warre in a
CHAP. LXXI Of the Peace WArre and peace are two births by severall venters and may like the day and night succeed but can never inherit each to other and for that cause they may claime to belong to one father and that one and the same power should act in both and yet it s no good maxime that he that is the chiefe Commander in warre ought to be the chiefe in the order of peace For it naturally befals that warre especially that which we call civill warre like some diseases in the body does rather breed ill humours then consume them and these must be purged by dieting the State and constant course of justice unto which the rugged waves of warre have little or no affinity if not enmity Neverthelesse the wisdome of our ancestors thought it most meet to keep their Kings in worke as well in time of peace as of war and therefore as they anciently referred the principall care thereof to the Lords who together with certaine select persons in every County did administer justice in severall iters or circuits so when Kings had once gotten the name of being chief in civill affaires as they had it in martiall they soon left the Lords behind them who also were willing enough with their own ease and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or commissioners thereto deputed And thus that peace which formerly passed under the titles of Pax Domini pax vice comitis it is pax Regni became by eminency swallowed up in that which was called the Kings peace and the Justices called the Kings Justices and himself flattered into that title of Fountaine of Justice which belongeth onely to him that is The Most High or Chiefe Law-giver The manner how this honourable care of the safety and peace of the Kingdome was imployed may be referred to a double consideration the one in execution of justice upon delinquents the other in preventing occasions of offence or delinquency by meanes whereof the publique peace might be endangered The first was acted diversly according to the present sence of affaires for what was at first done by the Princes in their circuits Tacitus with one hundred of the Commons called Comites and that done per pagos vicesque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chiefe Magistrates of Towns in their courts and Sheriffs in their Tornes as Judices stati for the ease of the people in matters of lesse moment I say I conceive it was in the Torne for I suppose no emergent court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve yeeres of age at the same 52 Hen. 3. Marlb cap. 25. and for the same cause it seemeth that one certaine Torne every yeere was holden for inquiries of homicide unto which all above twelve yeere of age were to come except Barons Clergy and women or otherwise all such had been bound to attendance on every Torne Neverthelesse the worke of the Tornes continued not to heare and determine as anciently they had done For in Henry the thirds time and formerly divers men had prisons to their owne use some as Palatines Mitor cap. 2. Sec. 9. other as Lords of Franchise and others by power and usurpation and had the benefit of all fines incident and by this meanes many were fined that deserved it not Mag. cart cap. 19. and some also that deserved worse to prevent which evill Henry the third tooke away that power of holding Crown-pleas Glocest cap. 8. West 1. cap. 3. And Edward the first tooke away their power to determine escapes and left them onely the power of inquiry and to certifie at the next comming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such coole pursuit Men were still ordinarily imprisoned and so continued oftentimes till the comming of the Justices itinerant For whereas in case of bloodshed the Writ de odio gratia was a remedy the other had no remedy but by procuring a Commission of Oyer and terminer which ordinarily was a cure worse then the hurt Stat. Wint. 13 Edw. 1. As a remedy hereof Edward the first found out the new way of making Justices of peace as may appeare by the Statute at Winton which law being purposely made for the conserving of the peace providing for penalty of crimes already committed as well as for the suppressing of future ordaineth that offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soone made way to resiant And before that Statute it seemeth the King had found out the way Coke Inst 4. p. 176 if that note be true which is left revived into memory by that honourable reporter which relating to the sixth yeere of Edward the first saith that then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Hen. 1. if I mistake not the sence of that clause in his laws concerning vagabonds he ordereth that they shall be carried Iusticiae quae praeest Hen. 1. cap. 58. although the language be not so Clerkly as to speake the sence out Now though their worke as yet was but in triall and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriffe was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriffs Torne and Lords Leets of that little remainder that was left them of judicatory power in matters that were against the peace and made their inquisitory power lesse regardfull and eased the Justices itinerant of much of their work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seemes were jealous of giving the power of determining those offences into any sudden hand To summe up then the first part as touching the punishment of offences against the peace the wheele is now in the turning the Leets and Tornes begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and terminer difused by the bringing in of a new order of Justices for the peace especially appointed And the Parliament as the supreame providors left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the Kings court after that the Common pleas were setled and confined to a certain place The preserving of the peace for the future
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
should be troubled with every such occasion and therefore the giving of advise to William the Conqueror what course he should take to settle the Lawes of England according to the instances in Councills holden An 1060. And 1070. And to gaine favour of the great men according to that in An 1106. and in the manner of endowment of the Abby of Battell as in pag 25. of the Opponents discourse and what to do upon the reading of the Popes Letter according to that in An 1114. And whether the Popes Legate should be admitted as in pag. 18. And how King Steven and Henry shall come to agreement as An 1153. And how to execute Lawes by Judges and Justices Itinerant as An 1176. And touching the manner of ingageing for a voyage by Croisado to Jerusalem An 1189. And to give answer to Embassadors of a forraine Prince pag. 25. And how King John shall conclude peace with the Pope An 1213. Where neverthelesse Math. Paris saith Pag. 23. was Turba multa nimis I say all these might well be done by a Councell of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appeare but that the Commons might be present in every one or many of them all Secondly as touching judicature the Lords had much power therein even in the Saxon times haveing better opportunites for Knowledge and Learning especially joyned with the Clergy then the Commons in those times of deep darknesse wherein even the Clergy wanted not their share as in the first part of the discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of judicature is inferiour to the regard of the Parliament and therefore the Plea between the Arch-Bishop and Aethelstan concerning Land instanced An 1070. And betweene Lanfranke and Odo An 1071. and betweene the King and Anselme pag 15 16. and the determining of Treason of John afterwards King against his Lord and King Richard pag 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appeare and therefore can these forme no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A third worke whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because hee findeth many things by them concluded touching the solemnization and the settling of the succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the election or Solemnization of such election a proper worke of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus page 16. will faile or the Opponents principles who will have no Parliament without a King The like may also be sayde of the instance concerning King Steven page 18. Much lesse can the solemnization of the election by Coronation be a proper worke for the Parliament Neverthelesse the Opponent doth well know that both the election of a King and the solemnization of such election by Coronation are Spiritlesse motions without the presence of the people and therefore though his instance page 17. concerning the election of Henry the First by the Bishops and Princes may seeme to be restrictive as to them yet it is not such in fact if Matthew Paris may be beleeved Mr. Seldens Title of Honor. who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A fourth sort of Instances concerneth matters Ecclesiasticall and making of Canons and hereof enough hath been already sayd that such worke was absolutely challenged by the Church-motes as their proper worke and therefore the Instance page 16 17. of the Councill in Henry the firsts time and the Canons made by the Bishops there and that other called by Theobald Arch-Bishop of Canterbury and instanced by the Opponent page 19. I say both these doe faile in the conclusion propounded Fifthly As touching the most proper worke of Parliaments which is the making of Lawes concerning the liberties and benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to his proposall for as touching those two instances in his thirteenth page Anno 1060. they concerne not the making of Lawes but the reviving of such as had been difused formerly which might well enough be done by private Councell But as to that in his fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincolne although it be true that wee finde not the particular titles of Knights Citizens and Burgesses yet besides the Councill of Arch-Bishops Bishops Abbats and Princes we finde the Common Councill for so the words are Communi Concilio Concilio Archiepiscopus Episcopus Abatus omnium Principum although the Opponent would seeme to wave these words Et Concilio but putting them in a small Character and the rest in a voluminous Letter that the Readers eyes might be filled with them and overlook the other Secondly as to the instance of the Councill at Clarindon in his nineteenth page which he citeth out of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the severall rankes of Great Men and those in blacke Letters of a greater size and saith That not one Commoner appeares yet Master Seldens Hoveden in that very place Tit. Honor Pag. 703. so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Lawes made by Richard the First in his twenty fourth page and hee setteth downe the severall ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Glosse of his owne that they were Barons that were made Knights when as formerly Barons were mentioned in the generall and therefore how proper this Glosse is let others judge especially seeing that not onely Milites and Milites Gregorij but even Ministri were present in such conventions even in the Saxon times And Master Selden in the former knowne place mentioneth an Observation that Tit. Honor Pag. 703. Vniversi personae qui de Rege tenent in Capite sicut ceteri Barones debent interesse judicijs curiae Domini Regis cum Baronibus Fourthly He citeth in his twenty fifth page
a sufficient Seale to all weights and measures which they committed to some Clerke whom they trusted and at this day though a Lay-person beareth title of Clerke of the market And although anciently they might not interesse secularibus yet afterwards it became a part of their Office to assist Judges in secular causes to see that justice be not wronged and had the sole cognisance of all causes criminall belonging to the Clergy their tenants or servants and in their Synods their power reached to such crimes of Lay-men as came within the savour of the Canon though it were but in the cold sent as the Lawes of Athelstane and other his successors sufficienly set forth And thus dressed up let them stand aside that roome may be made for their traine CHAP. IX Of the Saxon Presbyters THese follow their Lords the Bishops as fast as they can hunt Concil Brit. p. 576. for being of the same Order as the lesse proud times acknowledged they would not be under foot and the others above the top True it is that the Bishops loaded them with Canons and kept them under by hard worke under the tricke of Canonicall obedience yet it was no part of their meaning to suffer them to become vile in the eyes of the Laity for they knew well enough that the Presbyters must be their bridles to lead and curbe the people and their eyes to see whether the winds from below blew faire or foule for them whose consciences already told them that they merited not much favour from the people They see it therefore necessary to inhaunce the price of a Presbyter somewhat within the aloye of a Bishop to the end that the Presbytery may not be too like the Babylonian Image whose head was Gold and feet of Iron and Clay A Presbyter therefore they will have to be of equall repute with a Baron Concil Brit. p. 448. Ll Ethelst 13. Ibid. 406. Concil Brir p. 273. L. Aethel c. 2. Ll. Canut c. 12. Mag. cent 8. cap. 9. and his person shall be in repute so sacred as that all wrong done thereunto must be doubly punished with satisfaction to the party and to the Church His credit or fame must not be touched by lay-testimony Nor is he to be judged by any seculer power but to be honoured as an Angell Such are these instruments of the Bishops government and these are put as a glasse between the Bishops and people and could represent the people to the Bishop black or white and the Bishop to them in like manner as they pleased and so under fear of the Bishops curse kept the people in awe to themselves and it CHAP. X. Of other inferiour Church-Officers amongst the Saxons THey had other inferiour degrees of the Clergy which because they are meerly subservient and not considerable in Church-government I shall onely touch upon them The first are called Deacons Deacons which were attending upon the Presbyters to bring the offerings to the Altar to read the Gospell to baptize and administer the Lords Supper Then follow the Subdeacons who used to attend the Deacons with consecrated vessels Sub. Deacons and other necessaries for the administring of the Sacraments Acolites Next these Acolites which waited with the Tapers ready lighted while the Gospell was read and the Sacrament consecrated Then Exorcists Exorcists that served to dispossesse such as are possessed by the Divell an Office as it may seem of little use Concil Brit. p. 54. Lecturers yet very ancient for they are found at the Synod at Arles which was within three hundred yeeres after Christs death Lecturers come next who served to read and expound and these were of use when Churches began to multiply and Presbyters grew idle Lastly Ostiaries Ostiaries which used to ring the bels and open and shut the Church-doores These are the severall ranks of Church-officers being seven in number for Bishops and Presbyters make but one and might be as thus ordered the seven heads of the beast whereon the woman sitteth Concil Brit. 261. An. 750. and with much adoe make up a kind of Church-service somewhat like a great Hoe in a ship-yard at the stirring of a little log and are neverthelesse well payd for their labour CHAP. XI Of Church-mens maintenance amongst the Saxons I Take no notice in this account of the Abbats and Priors other such religious men as they were then called nor can I passe them amongst the number of Church-governours or Officers being no other then as a sixt finger or an excrescence that the body might well spare and yet they sucked up much of the blood and spirits thereof But as touching the maintenance of those formerly mentioned who had a constant influence in the government of the affaires of the publique worship of God and regard of the salvation of the soules of the people I say their maintenance was diversly raised and as diversly imployed First through the bounty of Kings and great men Lands and Mannors were bestowed upon the Metropolitan and Bishops in free almes and from these arose the maintenance that ascended up in abundance to the higher Region of the Clergy but came againe in thinne dewes scarce enough to keep the husbandmans hope from dispaire otherwise had not the Prelates so soon mounted up into the chaire of pompe and state as they did I say these are given in free almes or more plainly as almes free from all service and this was doubtlesse soon thought upon for it was formerly in president with their heathenish Priests and Druids as Caesar noteth Com. 6. that they had omninm rerum immunitatem yet with the exception of works of publique charity and safety such as are maintaining of high waies repairing of bridges and fortifying of Castles c. and hereof the presidents are numerous The worke whereto this wages was appointed was the worship of God and increase of Religion and thus not onely many of the Kings Subjects were exempted from publique service but much of the Revenue of the Kingdome formerly imployed for the publique safety became acquitted from the service of the field to the service of the beade the strength of the Kingdome much impaired and the subjects much grieved who in those early times saw the inconveniences M. Paris in vit Eadrick Abb. and complained thereof to their Kings but could not prevaile This was the vintage of Kings and great men but the gleanings of the people were much more plentifull for besides the Courts which swelled as the irregularities of those times increased and thereby enriched the cofers of that covetous generation An. 1009. Concil Brit. 523. Ll. Aetheld 31. the greatest part whereof ought by the Canon to goe to the publique the best part of the setled maintenance especially of the inferiour degrees arose from the good affections of the people who were either forward to offer or easily perswaded to forgoe constant supply for the Church-men out
they had usurped in their Synods which they held only for Church-visitation which they could never have because the Sapientes regni had their Votes therein as freely as they Nor could the Prelates by any Law entitle themselves to such power or priviledge so contrary to the priviledge of the Wtttagenmote For though it be true that the German Priests had a liberty to be present in these grand assemblies and to have some presidency therein as to command silence c. yet it s no title to these Tacitus unlesse they will interest themselves as their successors to possesse by a jus Divinum that jus Diabolicum which those Priests formerly had in a way of immediate providence somewhat like the possession of the mantle of Eliah found by Elisha They might I grant plead the title from Kings but it must be granted also that Kings as yet had no more power over the Church then in the Common-wealth Nor could they have that from the Lords which the Lords never had but was ever accounted amongst the majora and of which the Wittagenmot had the onely cognisance as it will appeare in some particulars ensuing Unto the King Lords and Clergy must be added as I said the Freemen to make up the Micklemote compleat and though it be true that no monument of story speaks of this grand meeting from their being in Germany untill after the comming of Austin yet when as the Saxon Histories then finde them in the same condition that the German story leaves them it s very probable that in the intervall they continued their wonted custome although they had no Learning to leave monuments thereof unto the world And hereof the examples are not rare in those remembrances that those ancient times have left us For within six yeeres after Austins arrivall Aethelbert cals a Common-councell tam cleri quam populi Concil Brit. 126. Ll. Sax. Lamb. cantab. fo 1. Ibid. fo 22. Ibid. fo 53. Ina after him made Laws suasu instituto Episcoporum omnium senatorum natu majorum sapientum populi in magna servorum Dei frequentia Alfred after him reformed the former Lawes consulto sapientum After him Aethelsian called a Councell in which was the Archbishop and with him the Optimates sapientes frequentissimi besides others whereof I shall treat now that I come to the matters handled in this Court The matters in agitation in the Wittagenmot generally were all both of publique and private concernment That which concerned the publique were such as regarded removall of inconveniences such as are lawes for leagues and affinity with other Nations for preventing of war and thus became the Saxons and Britons united Concil Brit. p. 219. Ll. Lamb. Cantabr fo 36. and the mortall feude between those two Nations laid aside and they made one and the Saxons and Danes reconciled by a covenant agreed unto and sworne between both Nations The like also may be said of their making of war of defence against forrain invasion Matters of publique and general charge also were debated and concluded in that assembly as the payment of Tythes Ll. Edw. Lamb. Cam. fo 139. it s said they were granted Rege Baronibus populo Such also as concerned the Church for so Edwin the King of Northumberland upon his marriage with a Christian Lady being importuned to renounce his Paganisme answered he would so doe Antiq. Brit. p. 51. if that his Queens Religion should be accounted more holy and honourable to God by the wise men and Princes of his Kingdom And all the Church Laws in the Saxons time were made in the Miklemote Monasteries were by their generall consent dedicated Concil Brit. 127. Ibid. 321. their possessions confirmed The City of Canterbury made the Metropolitane matters also of private regard were there proceeded upon as not onely generall grievances but perverting of justice in case of private persons as in that Councell called Synodale concilium under Beornulfus the Mercian King Ibid. 332. quaesitum est quomodo quis cum justicia sit tractatus seu quis injuste sit spoliatus The name of which Councell called Synodall mindeth me to intimate that which I have often endeavoured to finde out but yet cannot viz. that there was any difference between the generall Synods and the Wittagenmot unlesse meerly in the first occasion of the summons And if there be any credit to be allowed to that booke called Cap. 1. Sec. 3. The Mirror of Justices it tels us that this grand assembly is to conferre of the government of Gods people how they may be kept from sinne live in quiet and have right done them according to the Customes and lawes and more especially of wrong done by the King Sec. 2. Queen or their children for that the King may not by himselfe or Justices determine causes wherein himselfe is actor Cap. 4. Sec. 11. and to summe up all it seemeth a Court made to rise and stoop according to occasion The manner of debate was concluded by vote and the sum taken in the grosse by noise Tacitus Plut. Lycurg Thucyd. lib. 1. de Lacedem like to the Lacedemonians who determined what was propounded clamore non calculis yet when the noise was doubtfull they tooke the votes severally The meeting of the Saxons at this assembly in the first times was certaine Tacitus viz. at the new and full Moon But Religion changing other things changed these times to the Feasts of Easter Pentecost and the Nativity at which times they used to present themselves before the King at his Court for the honour of his person and to consult and provide for the affaires of his Kingdome and at such times Kings used to make shew of themselves in their greatest pompe Crowned with their Royall Crown This Custome continued till the times of Henry the second An. 1158. who at Worcester upon the day of the Nativity offered his Crown upon the Altar and so the ceremony ceased This grand Assembly thus constituted was holden sacred and all the members or that had occasion therein were under the publique faith both in going and comming unlesse the party were fur probatus If a member were wronged the delinquent payed double dammages and fine to the King by a Law made by Aethelbert above a thousand yeeres agoe Concil Brit. p. 127. Ll. Canut p. 2. cap. 79. Ll. Edw. cap. 35 This priviledge of safe passe being thus ancient and fundamentall and not by any law taken away resteth still in force But how farre it belongeth to such as are no members and have affaires neverthelesse depending on that Court I am not able to determine yet it seemeth that priviledge outreacheth members unlesse we should conceit so wide that the state did suppose that a member might be a notorious and known thiefe Lastly this assembly though it were called the Wittagenmot or the meeting of wise men yet all that would come might be
present and interpose their liking or disliking of the proposition si displicuit sententia fremitu aspernatur si placuit frameas concutiunt and some hints I meet with that this course continued here in England for some presidents runne in magna servorum Dei frequentia as that of Ina Ll. Sax. Lamb. p. 1. Concil Brit. 219. Ingulfus commune consilium seniorum populorum totius regni another Councell by him holden The councell of Winton An. 855. is said to be in the presence of the great men aliorumque fidelium infinita multitudine And it will appeare that it continued thus after the Norman times what power the vulgar had to controll the vote of the wise men I finde not fremitu aspernabantur its said and probably it was a touch of the rudenesse of those times for it was not from any positive Law of the Nation but a fundamentall Law in nature that wise men should make Lawes and that the supreame judicature should rest in the Wittagenmot was never an honour bestowed upon it by the Saxons but an endowment from the light of reason which can never be taken away from them by that headlesse conceit provoco ad populum but that body must be as monstrous as the Anthrophagi whose heads are too nigh their belly to be wise CHAP. XXI Of the Councell of Lords THis in the first condition was a meeting only of the Lords for direction in emergent cases concerning the government and good of the Common-weale and for the promoting of administration of justice these the Historian cals Minora because they were to serve onely the present passions of State Afterwards when they had gotten a King into their number they had so much the more worke as might concerne due correspondency between him and the people and of themselves towards both This worke was not small especially in those times of the growth of Kings but much greater by the accesse of Prelates into their number with whom came also a glut of Church affaires that continually increased according as the Prelates ambition swelled so as this Councell might seem to rule the Church alone in those daies when as few motions that any way concerned Church-men but were resolved into the Prelaticall cognisance as the minora Ecclesiae and thus under the colour of the minora Ecclesiae and the minora Reipublicae this mixt Councell of Lords came by degrees to intermeddle too farre in the magnalia Regni Mag. cent 8. cap. 9. An. 712. Concil Brit. p. 189. An. 694. For by this meanes the worshipping of Images and the masse was obtruded upon the Saxons by the Roman Bishop and his Legate and the Archbishop of Canterbury and decreed that no Temporall or Lay person shall possesse any Ecclesiasticall possessions That elections of Ecclesiasticall persons and officers shall be by Bishops That the possessions of Church-men shall be free from all Lay service and taxes And in one summe they did any thing that bound not the whole body of the Free men In which had these Lords reflected more upon the office and lesse upon the person and not at all upon their private interest they doubtlesse had been a blessing to their generations and a Golden Scepter in the hand of a righteous King but contrarily missing their way they became a Sword in the Kings hand against the subjects a snare to the Kingdome and had not the Wittagenmot in their meeting allayed those distempers the Saxon government had been little other then a Common-weale reversed CHAP. XXII Of the manner of the Saxon Government in time of warre AS the condition of States or Kingdoms are diversly considered in warre and peace so also must their government be for however warre in it selfe be but a feaverish distemper in a Common-weale yet in some cases it is as necessary as a kindly ague in due season is for the preservation of the body which many times takes distemper rather from the excellency of its constitution then from the abundance of humours Nor did the temper of the Saxon Common-weale ever shine more then in warre whiles it set a law upon that which ordinarily is master of all misrule and confusion and so fought by rule rather then by passion Their chiefe in the first times was chosen by the Freemen in the field Tacitus Ll. Edw. cap. 35 either at the Wittagenmot or the Folkmot according to the extent of his command being carried upon a sheild born upon their sholders like as now Knights of the shire are This Emblem they entertained him with to declare their trust in him and the worke that was expected from him His first Title was Heretock afterwards he was called Duke or Duce the latter whereof turned to a bare Title in the conclusion but the former maintained its owne honour so long as the name lasted After his election all sware to be at his Order and not to forsake him this was a tricke of imbased times Tacitus for though the Lacedemonian Law was positive that none should flie or breake his ranke but get the victory or die yet were they neither bound by oath or penalty shame in those times being accompted worse then death by those brave minds But times growing more old grew also more base-spirited and could not be drawn into the field holden in ranke by oathes or honour and this occasioned that Law of Ina the Saxon King that in such case a Countrey Gentleman should be fined 120 shillings if he were landed Ll. Sax. Lamb. Cantab. 10. but if otherwise 60 shillings and the Yeoman 30 shillings and afterwards the penalty was increased to the forfeiture of all the estate of the delinquent Concil Brit. p. 528. An. 1009. In their warres they went forth by bodies collectively as they were united by the law of pledges this made them sticke close together for the honour of their families and friends Tacitus and rendered their encounters mortall and to the worsted party commonly fatall for once beaten in the field they could hardly recover either by rallying or gathering a new Army Probable it is that the Lords might have their villaines to follow them in the battaile but the strength consisted of the free men and though many were bound by tenure to follow their Lords to the wars and many were voluntiers yet it seems all were bound upon call under perill of fine and were bound to keepe Armes for the preservation of the Kingdome Ll. Edw. cap. 35. their Lords and their own persons and these they might neither paune nor sell but leave them to descend to their heires and in default of them to their Lord and in default of him to their chiefe pledge and for want of such to the King They mustered their armes once every yeere both in Towns and Hundreds viz. the morrow after Candlemas and such whose bodies were unfit for service were to finde sufficient men for service in their stead They were strict in their
15. nor out of the County without allowance of the Sheriffe or other Governour of the same And if any controversie arose between the pledges the chiefe pledge by them chosen called also the Deane or Headburrough may determine the same Ll. Edw. c 20. but this held onely in matters of lighter consequence CHAP. XXVII Of Francheses and first of the Church Franches WE have hitherto trode in the rode way of the government of the Common-weale but private regards have made by-paths which we must trace or else the footsteps in many particulars will remaine unknown These are called exemptions but more ordinarily Francheses from which scarce any part of the Kingdome remained free and are to be considered eithet in regard of the place or person In the later I intend that of the Churchmen whose persons and estates in many particulers were exempted from the civill power of this Kingdom Their persons devoted to a peculiar worke they would have to be under a peculiar Law called the Canon law which at the first extended onely to their own persons and that onely pro reformatione morum Concil Brit. p. 258. for so an Archbishop tels us that it did teach quomodo Canonici id est regulares Clerici vivere debent but when it grew to its full charge it gave a louder report Quicunque aliquid tenuerit vel in fundo Ecclesiae mansionem habuerit extra curiam Ecclesiasticam non placitabit quamvis foris fecerit Ll. Edw. Conf. And thus as Church ground increased by the blind charity of those times so long Churchmen multiplied and the Canon inlarged from the persons of regulers to all Clergymen and from them to their Tenants and neighbours from thence to certain Spirituall or Ecclesiasticall crimes or scandals wherever they were found and wherever it touched it tooke and bound by Excommunication Ll. Edw. cap. 7. and upon significavit being first delivered to Satan they delivered him over to the sentence of the Law to be imprisoned If the offender be out of reach by the space of thirty and one daies he is outlawed so as there 's no way left to escape the Church fury CHAP. XXVIII Of the second Franches called the Marches FRanchises of the place were such as were limited within precincts of place annexed thereto and of this sort first were those of the borders of which those are the most ancient that bordered the Britons now called the marches of Wales in which was a peculiar government so far as concerned administration of justice for otherwise the subjects each of them submitted themselves to the service of their own Prince This was therefore a third different and mixt government agreed upon joyntly between the Britons and Saxons who after a long and burdensome warre wherein both peoples were well wearied by degrees became friends entered traffique and into the strictest societies by marriage Thus finding the sweetnesse of peace they provide against future occasions of strife that might arise in commerce by the justling of two Laws together agree in one law upon a certain number of Judges elected by common consent who were to see to the execution of these Laws as joynt assessors From these as I conceive arose those which are now called the Lords marchers Ll. Aetheld cap. 3. and were at the first twelve in number viz. six Saxons and six Britons It seemeth this form of government was first instituted by Aetheldred and by way of prescription or custome continueth till this day and as it was the birth of truce so for the future became both mother and nurse of peace between those two peoples like the twilight between the day and night untill both were brought under one head and by divine providence setled in a lasting day CHAP. XXIX Of County Palatines OF the same sort of Francheses were these which are called County Palatines which were certaine parcels of the Kingdome assigned to some particular person and their successors with royall power therein to execute all Laws established in nature of a Province holden of the Imperiall Crown and therefore the Kings Writ passed not within this precinct no more then in the Marches These were occasioned from the courage of the inhabitants that stoutly defended their liberties against the usurping power of those greater Kings that endeavoured to have the Dominion over the whose Heptarchy and not being easily overcome were admitted into composition of tributaries and therefore are found very ancient for Alfred put one of his Judges to death for passing sentence upon a malefactor for an offence done in a place where the Kings Writ passed not Miror cap. 5. Sec. 1. and the same authour reciting Another example of his justice against another of his Judges for putting one to death without president rendreth the Kings reason for that the King and his commissioners ought to determine such cases excepting those Lords in whose precinct the Kings Writ passeth not CHAP. XXX Of Francheses of the Person FRancheses of the person are such liberties annexed unto the person as are not absolute Lordships but onely tending thereto and limited within a Precinct but not annexed thereto and these are matters of profit rather then power as those of Bury St. Edmonds Doncaster Dorchester Circester all which were in the Saxon times Miror cap. 5. and these or some of them had juridicall power in cases of felonies and robberies arising within that precinct so as the delinquent was both inhabitant and taken within the same this was called Infangtheoff Infangtheoff and if upon fresh pursuit made by the right owner or possessor the delinquent was taken with the prey in his possession or as the old Dialect is Handhaben Backbearend Ll. Edw. cap. 26 Then was he carried immediately before the Coroner of that liberty and the Sakeber or party wronged made his proofe by witnesses and thereupon judgement forthwith passed without answer and execution immediately ensued Some Liberties had Outfangtheoff Outfangtheoff Bracton lib. 3. tract 2. cap. 35. Briton cap. 15. that is the triall and forfeiture of such delinquents being no inhabitants and yet taken within the liberty or inhabitants and not taken within the liberties but this triall was alwaies by Jury The antiquity of these Liberties are not obscurely manifested in their names and more clearly by the Saxon Laws and Acts Ll. Edw. cap. 21 for it s observed of Alfred that he seised a Franches of Infangtheoff because the Lord of that Franches would not send a felon taken within his liberty for a felony committed without the same to the gaole of the County Miror cap. 5. Sec. 1. as he ought to have done Other Liberties there were granted also by charter a taste whereof may be seen in one grant made by King Edgar to the Monastery of Glastenbury wherein was granted Sack Hamsockne Friderbrece Forstel Teme Flemone Ferdre Hundred Setene Sock Tholl Adae Horda Bufan Orderan Bene Orderan the
him over For though he might seem as it were in the heat of the chase to be drawn to London where the Crown was and that he rather sought after his enemies then it yet as soon as he perceived the Crown in his power he disputed not the right although that was Edgars but possessed himselfe of the long desired prey and yet he did it in a mannerly way as if he saw in it somewhat more then Gold and precious stones for though he might have taken it by ravishment yet he chose the way of wooing by a kind of mutuall agreement Thus this mighty Conquerour suffered himselfe to be conquered and stooping under the law of a Saxon King he became a King by leave wisely foreseeing that a title gotten by election is more certaine then that which is gotten by power CHAP. XLV That the title of the Norman Kings to the English Crown was by election SOme there are that build their opinion upon passionate notes of angry writers and doe conclude that the Dukes way and title was wholy by conquest and thence inferre strange aphorismes of state destructive to the government of this Kingdome Let the Reader please to peruse the ensuing particulars and thence conclude as he shall see cause It will easily be granted that the title of conquest was never further then the Kings thoughts if it ever entered therein else wherefore did he pretend other titles to the world But because it may be thought that his wisdome would not suffer him to pretend what he intended and yet in practice intended not at what he did pretend it will be the skill of the Reader to consider the manner of the first William's Coronation and his succeeding government His Coronation questionlesse was the same with that of the Ancient Saxon Kings for he was crowned in the Abbey of Westminster by the Archbishop of Yorke because he of Canterbury was not Canonicall At his Coronation he made a solemne covenant to observe those Laws which were bonae approbatae antique leges Regni Hoveden Eadmer Hist l. 1. p. 13. M. Paris vit Gulielm Malmsb l. 3. fo 154. Wigorn. An. 1066. Glossar Ll. Gul. Spicil 190. to defend the Church and Church men to govern all the people justly to make and maintaine righteous Laws and to inhibit all spoile and unjust judgements The people also entred into Covenant with him That as well within the Land as without they would be faithfull to their Lord King William and in every place to keepe with all fidelity his Lands and Honours together with him and against enemies and strangers to defend It is the selfesame in substance with the fealty that the Saxons made to their Kings as will appeare by the paralelling them both together The Saxons were sworn to defend the Kingdome against strangers and enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulnesse so as by the Saxon way the allegiance first terminated on the Kingdome and then as in order thereunto upon the King with his Lands and honours but the Norman either wholly omitted the first as needlesse to be inserted in a municipall Law it selfe being a Law in nature or else includeth all within the words Lands and Honours taking the same in a comprehensive sence for the whole Kindome and so made up the summe of the Saxon fealty in fewer figures Which may seem the more probable of the twaine because little reason can be rendred why the King should restraine that defence to his private lands if he claimed all by conquest when as all equally concerned him or why he should exclude the publique when as both himselfe and all he had was imbarked therein and it might subsist without him but contrarily not he without it appeareth not to my understanding nor did the thing enter into the Kings purpose if the file of his purposes be rightly considered For speaking concerning Castles Burroughs and Cities which are in nature of limmes of the Common-weale he saith that they were built for the defence of the people and Kingdome was this the service of walls and fortifications Ll. Gul. Spicil 61. and not much rather of men within those places of strength Certainly the plain English is that in time of breach of publique quiet and peace the subiects were bound to defend the Kingdome and in order thereto the people of the same and of the Kings right included in the publique defence else it were a strange conclusion that each man in particular and in their own person alone was bound to defend the Kings right but being imbodied the Kingdome And yet more clearly its apparent in that the service of the order of Knighthood which was the chiefe strength of the Nation in those daies was determined upon the service of the King M. Paris An. 1100 1213. and defence of the Kingdome or which is more plain for the service of the King in or for defence of the Kingdome as the statute of Mortmaine expounds the same Stat. 7. E. 1. But not to force the Kings sence by argument if the King had purposely omitted that clause of the Kingdomes safety as of inferiour regard to his own personall interest it was one of his rashest digressions wherein he soon espied his errour for in the middest of his strong and conquering army he held himselfe unassured unlesse he had a better foundation then that which must change with the lives of a few at the utmost And therefore besides the oath of fealty formerly mentioned he established a law of association that all free men should be sworn brethren Ll. Gulielm Spicil 59. 1. To defend the Kingdom with their lives and fortunes against all enemies to the utmost of their power 2. To keepe the peace and dignities of the Crown 3. To maintaine right and justice by all means without deceipt and delay Joyn then these two oathes together viz. that of fealty and this of fraternity and it will easily appeare that the allegiance of the English to the Norman Kings was no other then what might stand with brotherhood and tender regard of the publique above all and differing from the Saxon fealty onely in this that that was in one oath this in two Wherefore whatsoever respects steered in the reare of the Kings course it s lesse materiall so long as the vanne was right albeit that the sequell will prove not much different from the premises as will appeare in the foot of the whole account Thus entered the first Norman upon the Saxon Throne and as he had some colour of right to countenance his course William Rufus so had his sonne his fathers last will and yet he had as little right as he This was William Rufus that was of his fathers way but of a deeper die and therefore might well be called William Rufus or William in grain He was exceeding happy in the feare or favour of the
people for he had nothing else to make room for his rising True it is he had the good will of his father but he was dead and probably the people as little regarded it as he did them Nor was it ever observed that the English Crown was of so light account as to passe by devise of cestui que use and therefore though it was designed to him from his father yet both right and possession was left to the people to determine and maintaine The Clergy first led the way Eadmer hist Wigorn. M. Paris having fist taken a recognisance of him for his good behaviour towards them which he assured as farre as large promises and protestations would serve the turne and within one yeere after standing in need of the favour of the Commons to maintaine possession against his brother Robert he gave them as good security as the Clergy had which he kept in such manner that it was a wonder that one of so small interest in the Title but what he had by the peoples leave and favour should rule in such manner and yet die a King The favour of the people being like a meteor that must be continually fed or it soon goes out and fals for evident it is that the right of inheritance was his elder brother Roberts who was the braver man and more experienced souldier and upon these principles had obtained the love of the Norman Barons the flower of his fathers chivalry M. Paris An. 1088. the liking of the Clergy after they had found by experience the emptinesse of their hope in his brother William and was every way so superiour to his brother in advantages as we are left to believe that William got the day without any other ground but onely that God would so have it It s true the English stooke close to him but how they were gained or contained writers speake not but tell us of his promises which also they tell us were vaine and never had issue further then would stand with his profit Exit William Rufus Henry first and in comes his younger brother Henry the first of that name A Prince that excelled in wisdome and by it ruled his courage which served him so farre as his aimes and ends reached His title was no better then his fathers or brothers but rather worse for he had no colour of last will to propound him to the people and his elder brother Robert was still alive and by his service of the Church in the warre of Jerusalem might merit that respect of the Clergy as not to permit him to be a looser by so well deserving service as in those daies that was accounted Neverthelesse the English looke upon Henry as the fitter man for their turne being now at hand and Robert at Jerusalem and being a native born in England civilized into the English garb by education and of a wiser and fairer demeanure and more inclining to peaceable government which both Normans and English much inclined to as being weary of thirty yeeres service in the warres And therefore it s not marvellous if they applied themselves to him in a way of capitulation Math. Paris 1100. Eadmer Speed and lesse wonderfull if he hearkned thereunto and yet neither unadvisedly yeelded unto by him nor traiterously propounded by them as some in zeale to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himselfe to be just that he might be great and the people to submit unto justice that they might be free like as their ancestors were and themselves by the Law established ought to be For that capitulation was in substance setled by the ancient laws of the Saxons mixed with some additions of laws made by the Kings father with the joynt advice of the grand Councell of the Kingdom all which both the Norman Williams had often cofirmed by solemn protestations and promises however their actions upon sudden surprisall were malae consuetudines and exactiones injustae Math. Paris by this Kings own acknowledgement Thus these three Norman Kings made their way to the Throne the first by armes under colour of title the second by a kind of title under colour of armes and the last by favour but all entered the same by capitulation election and stipulation and for the generall had some regard to suit their course in order of retaining the good will of their people although in a different measure according to the differency of occasions CHAP. XLVI That the government of the Normans proceeded upon the Saxon principles and first of Parliaments THe principles which I mean are these First the legislative power and influence thereof upon the whole Secondly the members of that government with their severall motions Thirdly the laws customs or rules of those motions and first concerning the legislative power Although it be true that the first Williams great and most constant labour was to have and to hold and had but little time or liberty to enjoy yet that time of rest which had he did apply it and himselfe in the setling of the Laws by advice of Common-councell I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility onely as some men take the confidence to averre as if they had been eye-witnesses to the actions of those daies but by the joynt advise of the grand Councell of the Lords and wise men of the Kingdome of England Spicileg p. 5. I will not insist upon force of argument to shew that common reason must of necessity sway the King into this course but shall reserve that to another place the testimonies of Writers must now serve the turn and herein the testimony of the Chronicle of Leichfield must have the first place which speaks both of a Councell of Lords and saith that by their advice he caused to be summoned a meeting of all the Nobles and wise men through all the Counties of England to set downe their laws and customes This was in the fourth yeere of his reigne or rather after his entry and as soon as the Kingdome was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdome according unto Law doth strongly pretend that the Parliament had the legislative power and right of cognisance and judicature in those laws that concerned the Kingdome in generall and for the particular laws or customes of severall places or precincts it was referred to a Committee or Jury in every County to set them forth upon oath Secondly that this Councell had power to change laws may likewise appeare in that act made concerning the introduction of the Canon law Spicil 167. Fox Mart. l. 4. which shewes not onely the power of that Councell in Church-matters but also that the Canon was no further in force then the same would allow and this was also done by the Common councell and the Councell
conquest was the Clergy a considerable part of the Kingdome in those daies when as in every Nation they grew checkmate and in this Kingdome had well nigh the one halfe of the Knights fees and thereby a principall part of the strength of the Kingdome besides the consciences of them all and for a reserve they had the Pope in the reare whose power in every Kingdome was little inferiour to that of the Kings owne and therefore sufficient to stop an absolute conquest unlesse it were first conquered But the King came in upon great disadvantages in both these regards For whereas his pretence upon his entery was to advance justice principally toward the Clergy who formerly were wronged by Harold or voiced so to be this bound him from injustice and oppression and furthermore the Pope had him in a double bond one as Prince of the English Clergy the other as Judge of the title of the Crown by the Kings own election and that by sentence for the King had merited of him if not to hold the Crown it selfe by fealty to the Roman See yet by such services as that the tripple Crown should be no loser The King therefore must resolve to have no more to doe with the Church then will stand with the Popes liking unlesse he meaned to adventure himselfe and all he had into the danger of the great curse of which the King would seem more sensible then perhaps he was Nor were those times of the Church so moderate as to bring forth Churchmen that would catch the good will of the Laity by condescention or Popes of that height of perfection as to part with one tittle of their great Titles much lesse ought of that pitch of power which they had griped though it would save the world from ruine In all which regards the Norman Duke was too far inferiour to attaine by conquest any thing in this Kingdome wherein the Pope or Clergy claimed ought to have or doe A third sort of people avoided the dint of conquest either by timely siding with the Norman or by constant resisting of him or by neutrality Of the first sort were many Hoveden lib. 6. both Lords and others that by affinity and consanguinity were become Englishmen to the Norman use others were purchased thereunto by the Clergy that were zealous for the Popes honour that was engaged in the worke Ingulsus 512. Of those likewse that were resolute in the defence of the liberty of their Country there were not a few that purchased their liberty who otherwise might under pretence of treachery have forfeited the same to the rapacious humour of the Conquerour and this was not done onely by valour for Normandy stood in a tottering condition with their Duke partly drawn away by the French that feared the Duke would be too strong for them and partly declining their own further ayd least their Duke should be too great for the Dutchy It was therefore wisdome in the Conquerour to settle the English affaires in the fairest way to gaine them for himselfe who had been so brave against him But the greatest number especially of the commons looked on while the game was playing as contented with the cast of the Dice what ever it should be These were afterwards by the King looked upon not as enemies as the president of Edwin of Sharneburne witnesseth sufficiently but upon such as either were or by faire carriage would be made his friends Gloss 227. and therefore he concluded them under a law of assurance that they that had been so peaceable should have and enjoy their Lands as intirely and peaceably as they had formerly done before his entry To conclude therefore this point if these three parties of the English Normans the English Clergy the stout English and the peaceable English be set aside from the title of conquest it will be probable that not one tenth part of the Kingdome were ever under other change then of the Governours owne person CHAP. LVI A briefe survey of the sence of Writers concerning the point of conquest THe clamours in story that the Conquerour altered and made laws at pleasure brought in new customes molested the persons and estates of the people with depopulations extortions and oppressions and others of that nature have made latter times to conclude his government to be as of a Conquerour meerly arbitrary and that he did what he list how different this conclusion is from the intent of those Writers I know not but if the Kings title and government was as a Conquerour then was his will the onely law and can administer no cause of complaint of wrong and oppression and therefore if these be taken in nature of complaints they declare plainly that there was a law in title or else there could have been no transgression or cause to complaine But if the Reader shall apprehend these passages in Writers to be no other then sober relations then were it not amisse to consider from what sort of men these complaints or relations doe proceed viz. from Writers that have been cloystered men little seen in affairs of State more then by common report and rumour prejudiced by the Kings displeasure against their Cloysters and therefore apprehensive of matters in the saddest sence and many times far beyond the truth and might as well be supposed to misrelate as to mistake For if we shall touch upon particulars I thinke no man will deny but the King allowed property indifferently as well to Normans as English if the premisses be rightly considered and therefore though somewhat be true of the plundering of houses of Religion persecuting of the English Nobility deposing of Bishops and Abbots whereof they speake yet all might be deservedly done in a legall way and in execution of justice whereof Histories are not altogether silent Neverthelesse if in the prosecution the King did shew a kind of rage and some rashnesse it might be imputed to the common infirmity of great men for as oppression upon those that are inferiour makes them mad so doth treachery against them that are superiour make them little other especially if they be overtaken with a fit of passion in the instant or their minds wrapped into a whirlpoole of affaires But the change of laws makes the greater noise wherein what change they suffered may appeare from the premisses if Writers have delt uprightly Otherwise generall imputations without particular instances will never sway opinion contrary to the currant of the laws that are published especially seeing we have observed the errour of the best Historian of those times in calling those things new which were anciently used in England before Normandy was in a condition of a state Yet if this should be granted and that there were such change of laws as is pretended it makes nothing to the point of conquest so long as the new laws are made by advice of common Councell and for the common good and so long as they are established to be
rules for government I remember it s affirmed by some of those ancient Writers that the Duke or King would have brought in the customes of Norwey but the earnest mediation of the English prevailed against it and it evinceth two things to my opinion first that there was question made what law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdome they could not prevaile to bring in the whole body of their law or of the customes of Norwey which were not onely the prima materia of their law but also in kind had a setling at that very time in those places of this Kingdome where the Danes had their principall seate and therefore not altogether strange to the Saxons themselves The summe of which will be this that upon debate a law must be setled and that not the law of the Conquerours own will nor the law that suits with his desire but the ancient law of the Kingdome and therefore if at any time the unquietnesse of some of the English brought the King to some thoughts of arbitrary rule and to shake off the clog of Saxon law it was long ere it stirred and sprang up too late to raise the title of conquest and withered too soon to settle it As touching the change of customes for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour tooke away the custome of Gavell kinde and brought the custome of discent to the eldest sonne and that Kent saved their liberties and continued this custome of Gavell kinde I shall not contend about the liberties of Kent but must till I see better reason hold the opinion of the change of inheritance to be a meere conceit For besides what hath been already said concerning that custome of Gavell kind if we believe Glanvile the difference was between Lands holden by Knights service Lib. 7. cap. 3. and in socage the first of which in his time by ancient custome alwaies descended to the eldest and those Lands that were holden in Socage if not partible by custome in which case they went equally to all the sonnes went by custome in some places to the eldest in other places to the youngest so as the rule of inheritance in the Norman times was custome as well as in former times And furthermore if the custome of Gavell kind had been the generall custome of this Nation the King by his change had contradicted his own Prerogative and granted as great a liberty to his subjects as could have been invented For had the custome of Gavell kind happened upon the Lands in Knight service it had brought all the sonnes under the law of Wardship and had made a ready way to inthrall all men of worth and undoe all husbandry the first whereof had been as advantagious to the Kings private interest as both destructive to the publique Nor is it cleare from any Authour of credit that the Normans changed the tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what tenure he pleased for as well before the Normans time as long after tenures were like as the services were all at the will of the donor and were of as many individuals almost as the minds of the owners some being of more generall regard and publique use Littlet are recorded amongst the grounds of English laws none of which appeare to me to be of Norman originall although they received their names according to that dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute tyrant and to publish laws in a forreigne language that the people through ignorance might the rather transgresse and thereby forfeit their estates This if true so far differed from the nature of a Conquerour as rather proveth that he was put to his shifts Neverthelesse the thing tasteth so much of spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conquerour to entitle himselfe by a cheat where he hath an elder title by conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continuall view of publique affaires in those times who speaking of the Conquerour saith That he commended the Confessors laws to his Justices in the same Language wherein they were wonted formerly to be written Ingulfus lest through ignorance the people might rashly offend And another Authour saith M. Paris fragm Gulielm that the King had a desire to learn the English tongue that he might the better know their Law and judge according thereto It s probable neverthelesse that the laws were in the Norman tongue and it s no lesse likely that the pleadings in reall actions especially were also in the same Language else must the Normans be put to schoole to learne English upon perill of losse of their estates but that either the written laws were wholy concluded into the Norman Tongue or that the publique pleading of causes by word of mouth in all actions where the issue was left to the Countrey were in any other Language then English no advised Reader will conceive seeing it had been a madnesse for an English Jury to passe their verdict in any case wherein its likely many of them understood scarce a syllable of the Norman language much lesse ought of the matter upon which their verdict should be grounded Adde hereunto that it s not likely but the Conquerour inhibited the use of the English language in all matters of publique Record in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon more generally in the Latine but seldome or never in the Norman dialect and that pleadings and indictments were entered in like manner in the Latine Tongue as formerly by an old custome brought in by the Clergy was used for the Clergy who had gotten the Key of knowledge and Law into their own custody layd it up in that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for justice as well as for piety The Normans therefore either found it too hard to alter the former custome in such cases or else thought it the wisest way to choose the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any forreine Tongue besides and yet endeavoured to bring both peoples into one Language as they were intended to be one people and to presse the use of the Norman Tongue in publique affaires so farre as might consist with good government and justice leaving
withstood all though he had twice consented and once subscribed to them Constit at Clarindon having also received some kind of allowance thereof even from Rome it selfe cap. 12. Clergy men holding per Baroniam shall doe such services as to their tenure belong and shall assist in the Kings Court till judgement of life or member Two things are hereby manifest First that notwithstanding the Conquerours law formerly mentioned Bishops still sate as Judges in the Kings courts as they had done in the Saxon times but it was upon causes that meerly concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spirituall Courts and not the Clergy out of the Lay courts Secondly that the Clergy especially those of the greater sort questioned their services due by tenure as if they intended neither Lord nor King but the Pope onely Doubtlesse the use of tenures in those times was of infinite consequence to the peace of the kingdome and government of these Kings when as by these principally not onely all degrees were untied and made dependant from the Lord paramont to the Tenant peravale but especially the Clergy with the Laity upon the Crown without which a strange metamorphosis in government must needs have ensued beyond the shape of any reasonable conceit the one halfe almost of the people in England being absolutely put under the dominion of a forraine power Sanctuary shall not protect forfeited goods cap. 13 14. nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened with out Licence Constit at Clarindon cap. 15. It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without licence or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Churchmen to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into Monastery without the Lords consent cap. 16. Upon the same ground with the former for the Lord had not only right in his tenant which could not be aliened without his consent but also a right in his tenants children in regard they in time might by descent become his tenants so lie under the same ground of law for although this be no alienation by legall purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affaires These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last but their Captaine Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Samson like effected more then his life for the maine thing of all the rest the Pope gained to be friends for the losse of so great a stickler in the Church affaires as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishop espied a muse through which all the game of the Popedome might soon escape and the Pope be left to sit upon thornes in regard of his authority here in England For let the Metropolitane of all England be a sworne servant to the Metropolitane of the Christian world and the rest of the English Bishops not concur it will make the tripple Crown at the best but double Antiq. Brit. 302. F xe An. 1179. Alexander the Pope therefore meaned not to trust their faire natures any longer but puts an oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceale their counsels 4. To ayd the Roman papacy against all persons 5. To assist the Roman Legate 6. To come to Synods upon Summons 7. To visit Rome once every three yeeres 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their estates bodies and soules unto her service that which remaines the King of England may keepe And well it was that it was not worse M. Paris An. 1167. considering that the King had vowed perpetuall enmity against the Pope but he wisely perceiving that the Kings spirit would up againe having thus gotten the maine battell durst not adventure upon the Kings reare least he might turn head and so he let the King come off with the losse of appeales Baronus Anal. 1164. Sec. 11. and an order to annull the customes that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to loose to the scarcrow power of Rome yet it befell him as many great spirits that favour prevailes more with them then feare or power for being towards his last times worne with griefe at his unnaturall sonnes a shaddow of the kindnesse of the Popes Legate unto him wonne that which the Clergy could never formerly wrest from him in these particulars granted by him M. Paris An. 1176. That No Clerke shall answer in the Lay courts but onely for the forest and their Lay fee. This savoured more of curtesie then justice and therefore we finde not that the same did thrive nor did continue long in force as a Law although the claime thereof lasted Vacances shall not be holden in the Kings hand above one yeare unlesse upon case of necessity This seemeth to passe somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the Kings Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a hundred murders To prevent this evill the King loth to enter the List with the Clergy about too many matters let loose the law of feude for the friends of the party slaine to take revenge and this cost the blood of many Clerkes the Laity happly being more industrious therein then otherwise they would have been because the Ecclesiasticall Judge for the most part favoured them As an expedient to all which this Law was made and so the Clergy was still left to their Clergy and justice done upon such as sought their blood Clergy men shall not be holden to triall by battaile It was an ancient Law of the Saxons and either
the Clergymens then his Richard was yet a greater burden his reigne was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his father be blotted out but it was more troublesome to the people because it cost so much treasure was mannaged by such ill governours except the Archbishop of Canterbury and was unsuccesfull in most of his undertakings yet never invaded the liberties of the Commons by any face of prerogative But what wanted in him was made compleat and running over in his successor John who to speake in the most moderate sence of his government being given over to himselfe when he was not himselfe robbed the Lords of their authority bereaved the Church of its rights trode under foot the liberties of the people wasted his own Prerogative and having brought all things into dispaire comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regaine and Iohn could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gaine where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant government such as all men might learne which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in government is the law and the execution the latter being the life of the former and that of the Common-weale I say not that the law was augmented in the body of it or that the execution had a freer course then in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousnesse for the first whereof we are beholding to Glanvile in Henry the seconds time and for the latter to King Iohn or rather the Barons in his time in the publishing of the grand Charter or an enumeration of the liberties or customes of the people derived from the Saxons revived continued and confirmed by the Normans and their successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King Iohn soon repented of his oath the bond of his consent and to heale the wound got the Popes pardon and blessing thereupon so easie a thing it was for a sonne of the Roman Church to passe for a good catholique in an unrighteous way The execution of the Law was done in severall Courts according to the severall kinds of affaires whereof some concerned matters of crime penalty and this touched the Kings honour and safety of the persons of himselfe and his subjects and therefore are said to be contra coronam dignitatem c. The second sort concerne the profits of the Crown or treasure of the Kingdome The third concerne the safety of the estates of the people These three works were appointed unto three severall Courts who had their severall Judges especially appointed to that worke Originally they were in one viz. in the supream Court of Judicature the court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of severall men that were men of skil in such affaires and yet retained the Supremacy in all such causes still And because that which concerned the publique treasure was of more publique regard then the other the deputation thereof was cōmitted probably to some of their own members Gloss who in those daies were Barons of the Realm and afterwards retained the title but not the degree and therefore were called for distinction sake Barons of the Exchequer The particular times of these deputations appeare not clearly out of any monument of antiquity neverthelesse it s cleare to me that it was before Henry the seconds time as well because Henry the first had his Judex fiscalis Ll. Hen. 1. c 24. as Glanvile so frequently toucheth upon the Kings court of pleas which cannot be intended at the court of Lords for that in those daies was never summoned but in time of Parliament or some other speciall occasion but more principally because the Historian speaking of the Judges itinerant reciteth some to be of the common pleas Hoveden which sheweth that there was in those daies a distinction of jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advise of the Parliament after that the grand councell of Lords was laid aside by Kings and a Privy councell taken up unto whom could not regularly belong any juridicall power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime title of chiefe Justice who then was called Lord chiefe Justice of England and whose Office was much of the nature of the Kings Lieutenant in all causes and places as well in warre as peace and sometimes was appointed to one part of the Kingdome and by reason thereof had the name onely of that part and some other of the other parts The greatnesse of this office was such as the man for necessity of state was continually resident at the Court and by this means the Kings court was much attended by all sorts of persons which proved in after times as grievous to the King as it was burdensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergy as were also the under Officers of those courts for those times were Romes houre and the power of darknesse Other Courts also were in the countrey and were Vicontiel or Cours of Sheriffs and Lords of Hundreds and corporations and Lordships as formerly and these were setled in some place Hoveden but others there were which werr itinerant over which certaine Judges presided which were elected by the grand councell of Lords and sent by commission from King Henry the second throughout the Kingdome then devided into six circuits unto each of which was assigned three Justices so as the whole number of Justices then was eighteen The Office was before the comming of the Saxons over hither but the assignation was new as also was their oath for they were sworne But the number continued not long for within foure yeeres the King redivided the land into foure circuits and unto each circuit assigned five Justices making in the whole the number of twenty and one Justices for the Northern circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdome Hoveden 337. Ibid. 445. Neither yet did the first commission continue so long
may see the great difference between the Prince and the King in one and the same man The most part of those laws were little other then plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergy and therefore delivered the last law in a petitionary way to the Clergy because it concerned the execution of justice in prohibited times and yet bound up all with a salvo to himselfe and his prerogative like a wise King that would neither loose right nor doe wrong nor yet stickle to debate with his subjects now when as his eye was upon a further marke Walsing 46. For Leolin the Prince of VVales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to runne its course that he might have done the sooner Otherwise he had a seed of his fathers conceit that laws are not made for Kings as appeared afterward for after he had gotten his army into the field he tooke a fifteenth which was granted to his father and this was inaudito more M. West An 1276. but there was no disputing with power and therefore the subject must be contented rather to score it up against the future then require present pay so dangerous a thing it is for England that Kings should have occasion to gather armies though for never so honourable imployment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine yeeres travell before they could attaine the shore although it had been often within their view It may be the King found it advantagious for his government to maintaine an Army in the field under the colour of the Welsh warre that he might more bow his subjects to his own bent for during these warres the King made many breathings and tooke time to looke to the husbanding of his own revenue as those Ordinances called Extenta manerii and Officium coronatoris doe witnesse and the Statute of Bigami But the people were not altogether yet tamed for the times being still in warres and they occasioning much waste of treasure put the King to the utmost pitch of good husbandry and one degree beyond the same so as under colour of seising his own he swept up also the priviledges and liberties of his subjects M. West Polyd. virg some authours reciting the complaints of the Church men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another combuston had not the meeting at Glocester setled things for the present by referring the right of franchises to debate in the Eyer and ordering reseisure of such liberties into the subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth chapter of the Statute of Bigami Neverthelesse however debonaire the King seemed to be the sore between him and his subjects was not fully cured nor did the Lords trust him further then needs must for whether they served in the field or met at councell still they were armed and during this daring of each other were many profitable lawes made whiles neither party durst venture bloodshed in touching too nigh upon the priviledges of each other principally because the affaires in Wales were but laid asleepe and upon reviving might turne the ballance to either side The wars awake againe and therein are consumed nigh five yeeres more of the Kings reigne so as what ever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the prerogative of the Crown at home Nor had he scarcely breathed himselfe and army from the Welsh wars but he found both France and Scotland his enemies at once The King faced onely the first and fought the second which held him work the remainder of his daies at the same time also he arred both the Clergy and Laity at his own home as if providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the world whether his justice was spontaneous or by necessity for as yet he held the grand Charter at parley and therefore was rather eyed then much trusted Albeit he was put upon confidence in the subjects discretion for ayd of him in his continuall undertakings nor did they disclaime him herein however chargable it was for all seem willing he should be imployed any where so as not within the foure Seas It s probable the King knew it and therefore having made a voyage into France he changed the Scene of warre but to the other side as it were of a river in hope his Lords would follow but it would not be this angred him and he them nor would his Clergy allow him any ayd papa inconsulto and therefore he outs them from his protection these and his irregular preparations for warre by summons not onely of his Knights but all other that held Land worth 20 li. per annum Walfing 69. and taxes imposed by an arbitrary way increased rancour into a kind of state scoule little better then a quarrell for appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the grand Charter at the long runne and allowed it as the common law of the Kingdome and seconded the same with many succeeding confirmations in the 27 25 Edw. 1. 28 yeeres of his reigne as if he had utterly renounced all thought of a contrary way but the Stat. in his 28th yeere had a sting in the taile that was as ill as his saving of ancient ayd and prisals which was in the Stat. of confirmation of the Charters though it were omitted in this Stat. for the saving was of such a sence as time and occasion would move the Kings heart to make it and thus this Statute became like a Hocus pocus a thing to still the people for the present and serve the Kings turne that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good successe and the terrour of those that had stopped the broad way of his extravigant prerogative and therfore looks bigge rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his warres in Flanders all come and submit and as
and terminer in the cases of Quare impedit and Darraine presentment West 2. cap. 30. and gave them power to give judgement And thus the Commons gained still in point of conveniency cap. 16. Free men shall be amerced according to the degree of the fault saving to them their free hold and to Merchants their maine stocke and to villaines their Waynage and Clergy men shall be amerced according to their Lay fee. Barrons shall be amerced by their Peeres others by the vicinage In this regard is to be had first of the persons that are to be amerced then of the parties by whom and lastly of the nature and quantity of amercements The persons amerced are ranked into foure Classes Barons Clergy Free men and villaines But in regard of the parties by whom they are to be amerced they are but two Barons and Freemen for the Clergy villaines and free men are to be amerced by the free men of the neighbourhood Marlb cap. 19. In what Courts these amercements shall be the Stat. Marlbr tels us not before the Escheator nor other that make enquiry by Commission or Writ nor before the Justices of Assize or Oyer and terminer but only before the chiefe Justices or Justices itinerant The Statute of VVestminster addes a fifth Classes of Cities and Towns by expresse words Westm 1. cap. â— which seems not so necessary unlesse in pillaging and oppressing times for they were taken to be within the Statute of Magna carta Miror cap. 5. sect 4. though not therein named The rule of the quantity of amercements is now set down in generall and left to the discretion of the Peeres or Vicinage which formerly by the Saxons were specially set down in the law The rule in generall is with a ne plus ultra viz. not further or more then that the party amerced may spare and yet hold on in the maintenance of his course according to his degree And it must be also according to the quantity of the offence for the greatest amercements must not be ranked with the least offences so as in every degree the maine sustainance of the party is saved yea the villaines how ever meane they be they must have their maintenance And this sheweth that villaines had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unlesse they were the Kings villains who it seemeth were meerely under the Kings mercy as being both their Lord and King against whom they could hold nothing as properly their own and therefore in all other cases even then the villaines were borne under a kinde of liberty as in the Saxon times formerly hath been declared which the Law protected against their owne Lords No man shall be compelled to make repaire cap. 17 18. or maintaine any bridges banks or causies other or otherwise then they were wont to be made repaired or maintained in the time of Henry the second The limitation to the times of Henry the second sheweth that his justice was such as maintained the common rights of men but in the times of Richard the first Miror cap. 5. sect 2. and more especially of King John those rivers waters and fishings formerly used in common were incroached upon inclosed and appropriated to particular mens uses which occasioned many bridges banks and causies to be made and repaired to the great charge of private men all which are discharged by this Law cap. 19. No Sheriff Constable Coroner or other Bayliff shall hold any pleas of the Crown Escheators are also expressed in the old bookes of Magna carta and the abridgements however it seemeth that it s within the intent of the law which was made to avoyd the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of estates of men would inquire of matters concerning the lives of men and Sheriffs that had power of trials in cases of theft as hath been already shewen Ll. Hen. 1. c 8. Glanv lib. 1. cap. 2. abased the same for their own benefit because in such cases they had the forfeitures This law therefore takes away such occasions viz. from the Sheriffs and Corroners and Bayliffs or Justices other then by expresse commission thereto assigned all power to hold pleas of the Crown by triall leaving unto them neverthelesse power of inquiry of which anciently they had the right cap. 20. If the Kings tenant dieth supposed in arreare an inventory shall be made of his stocke by honest men but it shall not be removed till accounts be cleared and the overplus shall go to the Executors saving to the wife and children their reasonable part The first clause hereof was a law in Henry the firsts time and a customary law in Henry the seconds time Glanv lib. 7. cap. 5. being a remedy against an old Norman riot of the Lords seisure of the whole personall estate of the party deceased under colour of a law The second part concerning the overplus hath this additionall subjoyned in the Charter of King John If any free man die intestate his Chattels shall be divided by his parents and his friends in the presence of the Church saving to every one their proper debts and thus since the conquest the Church men incroached by degrees unto a great power in matters testamentary I say by degrees for as yet by this law it appeareth that they were but overseers or eye-witnesses for as yet right of ordering or disposing they had none as may appeare in that case of a bastard dying without issue and intestate the Lord shall have his personall estate Glanvil lib. 7. cap. 16. and in all cases the executor had then nothing but bare assets and the overplus was assigned between the wife and children according to their reasonable part or if the party died intestate the next friends did administer paying the debts and making dividend of the overplus into the reasonable parts according to the ancient Saxon custome still continued nor doth the testimony cited out of Bracton prove any other then that the auncestor hath free power to order his estate as he pleaseth Coke instit 2. pag. 33. and that the children shall have no more then is left unto them by their auncester either in his will or in case of dying intestate by the custome or law which is and ever was the rationabilis pars No purveyance for any Castle out of the same Town where the Castle is but present satisfaction must be made cap. 21. and if in the same Town satisfaction must be made within forty daies Purveyance was ancient provision for the necessities of the publique and so farre was commendable seeing it s not the common case of all men to regard the publique above their own private interest therefore the publique must provide for it selfe by their meanes in whom the publique is most concerned and this
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
of these persons the one being perpetuall the other temporary therefore is there also by these laws a difference in the disposall of their estates for the tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the naturall affection going along with the blood and this so continued in custome untill these times for though the Miror of Justices saith that Henry the first brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the first speaking of these kind of persons saith Bract. lib. 5. cap. 20. Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their parents and friends Lib. 1. cap. 10 But let the time of the entrance of this law be never so uncertaine it s now a declared law that the King in such cases is the common curator or tutor of all such persons as he is a chiefe Justice rendring to every one his right The King shall have the wrecks of the Sea Prerog Reg. cap. 11. West 1. cap. 4. What shall be called a wreck the Statute at Westm 1. declareth viz. where the ship so perisheth that nothing therein escapeth alive and these are rather in their originall committed to the King as a curator then given him as a proprietor although that custome hath since setled a kind of right which may perhaps be accounted rather a title by estoppell For the fundamentall ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appeare Marlb cap. 17. The heire in Socage tenure shall have an action of waste and an accompt against his guardian for the profits of his lands and mariage The heire in Socage being under age shall also be under custody of such guardian of the next kindred Bracton lib. 2. cap. 37. who cannot challenge right of inheritance in such lands so holden as if the Lands descended from the father side the mother or next of the kindred of the mothers side shall have the custody and so if the Lands descend from the mother the father or next kindred of the fathers side shall have the custody And this custody bringeth with it an authority or power onely and no right as in case of the heire in Knightservice and therefore cannot be granted over as the wardship in Knightservice might but the guardian in Socage remaineth accomptant to the heire for all profits both of land and marriage The full age of tenant in Socage is such age wherein he is able to doe that service which is 14 yeeres for at such age he may b able by common repute to ayd in tillage of the ground which is his proper service But the sonne of a Burgesse hath no set time of full age but at such time as he can tell money and measure cloath and such worke as concerne that calling Merton cap. 1. Widdows deforced of their Dower of Quarentine shall by action recover damages till they recover their Dower cap. 2. They shall also have power to divise their crop arising from her Dower Bract. lib. 2. cap. 40. It was used that the heire should have the crop with the Land but this Statute altered that former usage and yet saved the Lords liberty to distraine if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy West 2. cap. 24. and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilfull in the Law It was none of the meanest liberties of the freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no lesse a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wils and not of the Laws of the Kingdome M. Paris addit Artic. 44. as the complaints of the Clergy in the times of Henry the third doth witnesse Neverthelesse because many mens cases befell not directly within the Letter of any Law for remedy and yet were very burdensome for want of remedy it s provided by this Law that in such emergent cases that doe befall within the inconvenience shall likewise be comprehended within the remedy of that law Aide to make the sonne of the Lord a Knight West 1. c. 36. and to marry his eldest daughter shall be assessed after the rate of twenty shillings for a Knights fee and twenty shillings for twenty pounds in yeerely value of Soccage tenure The uncertainties of ayds are by this Law reduced and setled as touching the summe and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular summe hereby but also the age of the sonne when he was to be made a Knight viz. at the age of fifteen yeeres too soon for him to performe Knightservice but not too soone for the Lord to get his money And the daughter likewise was allowed to be fit for marriage at seven yeeres of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gaine that made the Law and it was not amisse to have the ayd beforehand though the marriage succeeded not for many yeeres after and if the Lord died in the interim the executors having assets paied it or otherwise his heire CHAP. LXVIII Of Courts and their proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of latter birth albeit even they also have been of ancient constitution and divers of them itinerant also and some of them setled in one place The worke of the Justices itinerant was universall comprehending both matters of the Crown and Common-pleas That of oyer and terminer is onely of Crown pleas originally commenced and inquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large worke that is to deliver the Gaols of all criminall offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognisance of Common pleas onely and for the most part are but fo inquiry All which saving the Justices itinerant in ancient use were instituted
consisted in preventing and suppressing riots routs unlawfull assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other malefactors And herein we are to consider 1. The Laws 2. The meanes 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the Kings own person and therefore we finde not onely the assize of Armes but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can finde put the same into the force of a law by Parliament finding by experience that Proclamations may declare the Kings mind but not command the peoples wils although peradventure the thing enjoyned was of ancient use and little inferiour to custome or Common law Such are the distempers of civill broiles that bring up peace in the reare as a reserve when their owne strength is wasted rather then out of any naturall inclination thereto A briefe recollection of the laws thus ensues Stat Wint. 13 Edw. 1. cap. 1. In case of Robbery or fellony committed and the delinquent be not forth cemming or discovered the County or Hundred shall answer the dammages Of this more may appeare from the Norman and Saxon laws the intent appeareth by the law it selfe to stirre up the people to use all meanes by pursuit with hui and cry and making inquisitions of the fact with all speed in Townships Hundreds Franchises and Counties cap. 2. Persons suspected shall not be entertained or harboured by any inhahitant unlesse He will undertake for him Of this also formerly both in the Norman and Saxon laws cap. 3. Walled Towns shall keepe their gates shut from Sunne set to Sunne rising The like observed in Cities Burroughs and Townes from the feast of Ascention to Michaelmas The power of the watch was great it might apprehend any passenger and stay him all night and if he be a suspected person he is to be committed to the Sheriffe and if an escape be made the party is to be pursued with hui and cry These two last Chapters were in effect in Henry the thirds time in course by way of the Kings command by Writ in the 36 and 37 yeers of his reigne with some more particulars concerning the same M. Paris in Addit post Adversar cap. 4. High waies through every Lordship shall be kept cleare on each side by the space of 200 foot from hedges ditches Bushes and underwood High waies herein intended are such as are from one Market Town to another and in such were alwaies preserved the publique peace or safety for the maintenance of commerce and freedom of traffique which is of such publique concernment that it hath been of very ancient institution Every man between the age of fifteen yeeres and forty shall maintain Armes in his house cap. 5. according to the ancient Assize for the preserving of the peace This Chapter brings into consideration the second thing propounded viz. the meanes of preserving of the peace which are two First by maintaining Armes 2. By certifying defaults In the first is to be considered the persons that are to be assessed 2. The Armes 3. The end The persons to be assessed to Armes are indefinitely set down and comprehend all sorts as well bond as free and others for such are the expressions in the Commission of Henry the third 36 Hen. 3. M. Paris post adversaria Hoveden But by the Assize of Henry the second none were to be armed but free men and they worth sixteen or ten Marks in goods at the least yet their ages are limited by this Law they must be between fifteen yeeres and forty but by the Commission in Henry the thirds time all between fifteen and sixty yeeres of age were to be armed King John arrayed all sorts free bond and all others that have Armes or ought to have or can carry Armes M Paris Anno 1213. and it seems by what hath been formerly noted that those that were younger then their tenure would beare them out were accepted into service if they would offer themselves but by these courses they though under one and twenty yeeres of age were not onely accepted but compelled to warre Hoveden Hen. 2. M. Paris addit Under this title we may also touch upon the persons that were the instruments to array these men or rather to arme them and these were Justices itinerant or one or more Commissioners such as the King found most meet for the service and unto these were Commissions with instructions sent and sometimes Writs were directed onely to the Sheriffs to take with them twelve Knights of the County M. Paris post adversaria and to goe into every Hundred and call before them all such persons as by the law ought to be assessed at Armes and to cause them to be sworn to finde and maintaine Armes in such manner as by the Law they then should be or formerly were assessed and sometimes the establishment of Armes were set down in those Writs and sometimes published by Proclamation M. Paris Anno 1253. 1256. For Kings found all means little enough to prevaile to bring in alteration of Armes and of their service which was a thing not onely troublesome but chargeable and whereunto they could not easily prevaile to bring the freemen to consent and therefore sometimes the indeavours of Kings in such cases did not onely meet dilationem M. Paris An. 1253. but also deletionem as the Historians words are untill the way was found out to declare an establishment by Parliament by this Statute made at Winton Now for the nature of the establishment we are to consider that the people of England were distinguished according to their teanures Ll. Gulielm 58. into such as held by Knightservice and such as held by Soccage and that none but those being freeholders could be charged to finde armes according as by the Lawes of the Norman Conquerour may appeare The establishment of Armes for the Knights were established by their tenures in certainty and therefore no need was either of assessment or oath to tie them to finde such Armes but all the difficulty was for such as were not bound by other tenure then as free born subjects all of whom doe owe to their Country defence and so questionlesse had liberty to provide themselves of such armes as were by common and constant use held most advantagious against the common enemy and for the publique defence And that these were put in certainty may appeare by the Law of King VVilliam formerly noted and by some instances in the Saxon Laws anciently used Ll. Aethelst c. 16. amongst others that Law of Aethelstane that for every plough every man
or provide for future generations Neverthelesse if all be granted viz. that this Statute is but a present order that the Armes therein are too slight to resist an enemy and the end thereof was onely to enable the Kingdome against Thieves and Robbers yet could not Edward the first pretend to have any power to assesse Armes at pleasure upon occasion of warre for the defence of the Kingdome nor is there any president in story that countenanceth it seeing Henry the third and Henry the second in their course used the rule secundum facultates as had been formerly observed and the rule foregoing tended onely to freemen and their Lands Nor did King John disclaime the same but pursued it and yet if there be any president of prerogative in story which King John had not that King will be looked upon as a King of wonderment I say King John pursued it when he was in the strength of his distemper threatned by the Pope provoked by the French King now ready in the field vexed by his people and himself scarce himselfe summons to defend himselfe themselves M Paris An. 1213. and the Kingdome of England all men that ought to have Armes or may have Armes and such as have no amres and yet arma habere possint let them also come ad capiendum solidatas nostras and accordingly there came a vast number not onely of the Armed men but of the unarmed multitude who afterward were sent to their own home when victuals failed Hitherto therefore King John not above three yeeres before his death held himselfe to the assessment to Armes onely of such as had Lands and at this time of exigency others unarmed were summoned to take Armes from the King with their pay or otherwise they must fight without weapons I am now come to the last generall point which concerneth the executive power of matters concerning the peace within this law touching which the Statute inforceth this that Constables in every Hundred and Franchise shall have the view of Armes and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy whereby it seemeth manifest that hitherto no law or custome was made against any for default of Armes but onely such as held by that tenure and therefore they had a shift to cause them to sweare to maintaine Armes and so might proceed upon defaults as in case of perjury and that the Parliament was still loath to set any certaine rule for penalty and absolutely declined it and left it under a generall periculo incumbente which its likely men would rather eschew by obedience then adventure upon out of a daring spirit unlesse their case was very cleere within the mercy of common reason and therefore such cases were left to speciall order of the Parliament rather then they would deliver such a rod as determining power was over into any uncertaine hand what ever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments order into the directory of Edward the first which thing reacheth farre for then in order thereunto the whole Militia of the Kingdome must have been under his safe command and whether it ever entred into the conceipt of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to us viz. Edw. 1. and from us by our Royall Seignory to defend force of Armes and all other force against our peace at all times that we shall please and to punish according to the laws and usages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound us to ayd as their good Lord alwaies when need shall be Two things are concurrant with this which is the body of the Statute if such it be the one is the preface or the occasion and the second is the conclusion upon the whole body of the same The preface first set down the inscription or direction of the Law not to the people but to the Justices of his bench and so it s in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certaine persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earles and Barons that in all Parliaments treaties and other assemblies which shall be had in the Kingdome of England for ever after all men shall come thereto without force and without Armes well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earles Barons and Cominalty being assembled to advise upon this matter nous eiont dit saith one coppy and nous eions dit saith another coppy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principall one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the bench and there enrolled and this is dated the 30. of October in the seventh yeere of his reigne which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon record in nature of a claime or protestando for saving the prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his owne that it might be more carefully nursed against the blast of time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civill affaires and so referred it to the Kings care to provide against imergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suite with the posture of affaires then in course for the Welsh warres were now intermitted and a quiet of three yeeres ensued in the middest of which Souldiers having liberty to doe nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsell