an issue of the Neighbouring Nations from the German and Belgick shores induced hereto partly by the vicinity of the Names of he People Cities or Towns and Places but more of their Manners and Customs both in Religion and Civil Government Barbarians they were and so esteemed by the Romans that were but refined Barbarians themselves and yet they worshipped an Invisible Infinite Omnipotent God by Sacrifices but the greatest part of their reverence fell short and rested upon their Priests whom they accounted the only Secretaries that God had on earth feared their interdict worse than death itself and in these times of uttermost darkness held them forth to neighbouring Nations to instruct them into an higher excellency than that of brutish men In their civil Government they allowed preeminence of their Magistrates rather than Supremacy and had many chiefs in a little room the Romans called them little Kings for the greater renown of their Empire But others of more sobriety account them no better than Lords Of liberties not much exceeding those of a City and these though in time of peace independant upon each other yea perpetual Enemies yet in time of Forreign War joyned together to chuse one Head to command them all according to the custom of the Germans as Caesar noteth But that which yet cleareth the matter is the testimony of Dion in the Life of Severus the Emperour who expresly saith That in Britain the People held the Helm of Government in their own power So as these were not Kings nor their Government Monarchical and yet might be regular enough considering the rudeness that in those days overspread the world True it is that by a holy man this Nation was in latter times of Barbarism called Tyrannorum gens the word being taken mitiori sensu or from a common repute of excessive cruelty or oppression by Superiours As touching their Cruelty I find no footsteps in story Somewhat reflecteth upon their Sacrifices as if they offered Mans flesh but that was common to the Gauls who borrowed their Religion from Britain and it might be founded rather upon an error in judgment than savageness of nature Much less cause doth appear of any cry of oppression upon inferiours but rather against that as the multitude of Kings or Lords do manifestly witness who being observed in the time of Julius Caesar continued in Tiberius his time and afterwards until in the Reign of Claudius 't is said that Caractacus ruled over many Nations For it is a certain Maxim that though great Nations may be upholden by power small Territories must be maintained by justice without which the door will be soon set open to the next passenger that comes especially where the people are bent to war as these were and therein had attained such exquisite perfection of skill in Chariot-service as must needs convince us of their much experience against themselves in regard that to other people it was scarce known no nor yet to Caesar himself that had been practised in the Wars of all Nations And this is all that I can produce out of story touching the Government of Britain before the entry of that light that lightneth every one that cometh into the world CHAP. II. Concerning the Conversion of the BRITONS unto the Faith. IT was long before the Son of God was inwombed and whiles as yet Providence seemed to close only with the Jewish Nation and to hover over it as a choice picked place from all the earth that with a gracious eye surveying the forsaken condition of other Nations it glanced upon this Island both thoughts and words reflected on Isles Isles of the Gentiles Isles afar off as if amongst them the Lord of all the earth had found out one place that should be to him as the Gemme of the ring of this Terrestrial Globe and if the ways of future providence may be looked upon as a gloss of those Prophecies we must confess that this Island was conceived in the womb thereof long before it was manifested to the world To recover the forgotten ways of past providence is no less difficult than to search out the hidden bowels of future promises and therefore I shall not busie my self to find out the particular instruments that brought Gods presence into this dark corner but only glance at the time and manner that it may appear we were not forgotten nor yet lost or least in mind at that time of the dispensation of this grace unto all men I dare not instance as Gildas the certain time of six years yet I may say that no sooner was the Scepter departed from Judah but with a swift pace both it and the Law-giver came hither like an Arrow flying through other Countries but sticking with a ne plus ultra in this Island then a People rather than a Commonwealth as if we were the onely White that then was in God's aim It 's probable in the highest degree that the work was done within the first Century and very nigh about the Apostolick times for that in the second Century Britain was a Church of Fame and known to the Fathers that dwelt afar off even to Tertullian and Origen and in short time had outreached the Roman confines in that Island which had cost them above two Hundred years Travel and was grown to the state of the first Christian Kingdom that ever was Unto which if we shall allow time for the gathering and growth thereof unto this Royal pitch proportionable to the half of that which afterward was spent in the like work upon the Saxon and Danish Kings we must in reason conclude that the work was first ordered by Apostolical direction or some of their Emissaries Customs also do not obscurely declare Ages For before that Pius Bishop of Rome began to speak in the big Language of Decrees it was indifferent to keep Easter either upon the day observed by the Roman Church or on the day according to the Jews custom and although the Roman Church began within fifty years after the death of John the Evangelist to stickle to impose their custom upon other Churches yet the Church of Britain conformed not to that course by the space of five Hundred years after that time which reflecteth probability that the Church was there setled in times of indifferency not by Roman Order but by some other purposed Messenger The manner yet is more remarkable for that not onely Principalities and Powers and Spiritual Wickednesses in high places which are but Stumbling-blocks but also natural wisdom of the Druides who were Masters of the Consciences of the Britons and their high conceit of their excellency above the ordinary strain of men and unto which the Cross of Christ is meer foolishness and above all the deep obligement of the People unto these their Rabbies in a Devotion beyond the reach of other Nations All these I say stood in the way and rendred the people
Advertisement THis Book at its first Publishing which was shortly after the Death of King Charles the First had the ill fortune to be coldly received in the world by reason of the Circumstances of those times but after K. Charles the Second was possest of the Crown and endeavoured to advance the Prerogative beyond its just bounds the Book began to be much enquired after and lookt into by many Learned Men who were not willing to part easily with their Birth-Rights so that in a short time it became very scarce and was sold at a great rate this occasion'd the private Reprinting of it in the year 1672 which as soon as the Government perceived they Prosecuted both the Publisher and the Book so violently that many hundreds of the Books were seized and burnt that and the great want of the Book since occasioned the Reprinting of it without any Alterations or Omissions in the year 1682 when the Press was at liberty by reason of the ceasing of the Act for Printing but Prerogative then getting above the Law it met with a new Persecution and the Publisher was Indicted for the Reprinting of it the passages in it upon which the Indictment was found were these Part II. Page 76. beginning Line the 24th thus I do easily grant that Kings have many occasions and opportunities to beguile their people yet can they do nothing as Kings but what of Right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statute Laws of this Realm might take place And Part II. Page 148. Line 32. And though Kings may be Chief Commanders yet they are not the Chief Rulers The Prosecution went on so rigorously that the Publisher tho' beyond the Seas yet willing to try the Cause appeared according to the constant practice of the Court of King's-Bench by his Attorney but for not being personally present in the Court which was then impossible he was by the Arbitrary Power of the then Lord Chief Justice Jefferys Out-Law'd for a Misdemeanour and so remain'd till this wonderful Revolution by the wise Conduct of his Highness the Prince of Orange The Books have been ever since with care and charge preserved for the benefit of all that are willing to know and maintain their Antient Laws and Birth-Rights It was well known to and owned by the late Lord Chief Justice Vaughan who was one of the Executors of the Great and Learned Mr. Selden that the Ground-work was his upon which Mr. Bacon raised this Superstructure which hath been and is so well esteem'd that it is now again made publick by January the 10th 1688-9 John Starkey AN Historical and Political DISCOURSE OF THE Laws Government OF ENGLAND FROM The FIRST TIMES to the End of the Reign of QUEEN ELIZABETH WITH A VINDICATION of the ANCIENT WAY of Parliaments in England Collected from some Manuscript Notes of John Selden Esq by Nathaniel Bacon of Grays Inn Esquire LONDON Printed for John Starkey And are to be Sold by J. Robinson at the Golden Lyon in St. Pauls Church-Yard R. Bentley in Russel-Street in Covent-Garden Jacob Tonson at the Judges Head in Chancery-Lane T. Goodwin at the Maiden Head in Fleetstreet and T. Fox at the Angel in Westminster-Hall 1689. AN HISTORICAL and POLITICAL DISCOURSE OF THE Laws Government OF ENGLAND The FIRST PART From the FIRST TIMES till the REIGN OF EDWARD III. LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII Advertisement A Private Debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conquerour so called first occasioned this Discourse Herein I have necessarily fall'n upon the Antiquity and Vniformity of the Government of this Nation It being cleared may also serve as an Idea for them to consider who do mind the restitution of this shattered Frame of Policy for as in all other Cures so in that of a distempered Government the Original Constitution of the Body is not lightly to be regarded and the contemplation of the Proportions and manners of the Nation in a small Model brings no less furtherance to the right apprehension of the true nature thereof besides the delight than the perusing of a Map doth to the Traveller after a long and tedious travel I propound not this Discourse as a Patern drawn up to the life of the thing nor the thing it self as a Master-piece for future Ages for well I know that Commonwealths in their minority want not onely perfection of Strength and Beauty but also of Parts and Proportion especially seeing that their full age attaineth no further growth than to a mixture of divers Forms in one Ambition hath done much by Discourse and Action to bring forth Absolute Monarchy out of the Womb of Notion but yet like that of the Philosopher's Stone the issue is but wind and the end misery to the undertakers And therefore more than probable it is that the utmost perfection of this Nether-worlds best Government consists in the upholding of a due proportion of several Interests compounded into one temperature He that knoweth the secrets of all Mens Hearts doth know that my aim in this Discourse is neither at Scepter or Crosier nor after Popular Dotage but that Justice and Truth may moderate in all This is a Vessel I confess ill and weakly built yet doth it adventure into the vast Ocean of your Censures Gentlemen who are Antiquaries Lawyers and Historians any one of whom might have steered in this course much better than my self Had my own credit been the fraight I must have expected nothing less than wrack and loss of all but the main design of this Voyage being for discovery of the true nature of this Government to common view I shall ever account your just Censures and Contradictions especially published with their grounds to be my most happy return and as a Crown to this Work And that my labour hath its full reward if others taking advantage by my imperfections shall beautifie England with a more perfect and lively Character THE CONTENTS Of the FIRST PART CHAP. I. Of the Britons and their Government page 1 II. Concerning the Conversion of the Britons into the Faith. 2 III. Of the entry of the Romans into Britain and the State thereof during their continuance 3 IV. Of the entry of the Saxons and their manner of Government 8 V. Of Austin's coming to the Saxons in England his Entertainment and Work. 11 VI. Of the imbodying of Prelacy into the Government of this Kingdom 13 VII Of Metropolitans in the Saxons time 15 VIII Of the Saxon Bishops 16 IX Of the Saxon Presbyters 17 X. Of inferiour Church-Officers amongst the Saxons 18 XI Of Church-mens maintenance amongst the Saxons ibid. XII Of the several Precincts or Jurisdictions of Church-Governours amongst the Saxons 22 XIII Of the manner of the Prelates Government of the Saxon Church 23 XIV Of Causes Ecclesiastical 24 XV.
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
over Learned men to Preach and Baptize both King and People and this Rome might probably gain some Honour although possibly the King intended it not or much less to acknowledg any Authority or Power in that Church over that of Britain This act of Lucius so advanced him in the opinion of Writers that they know not when they have said enough Some will have him to be the instrument of the first entry of Religion into this Isle others that he setled a form of Church-government under the three Archbishops of London York and Caerlion upon Vske and 28 Bishopricks the first of which is cried down by many demonstrative instances nor can it consist with the second nor that with it or with the truth of other stories For it neither can be made out that Lucius had that large circuit within his Dominion nor that the title of Archbishop was in his daies known and 't is very improbable that the British Church was so numerous or that Religion in his time was overspread the whole Island nor is there any mention in any Author of any Monuments of these Archbishops or Bishops of Britain for the space of 200. years after this King's reign and yet no continual raging persecution that we read of that should enforce them to obscure their profession or hide their heads or if such times had been it would have been expected that Bishops in those daies should be in Britain as well as in other places most famous for gifts and graces and pass in the forefront of persecution But we find no such thing no not in the rages of Dioclesian which made the British Church famous for Martyrs Writers speak of Alban Amphibalus Aron Julius and a multitude of Lay-people but do not mention one Bishop nor Presbyter nor other Clergy-man but quendam Clericum a man it seems of no note and of unknown name In Charity therefore the English Church in those daies must be of mean repute for outward pomp and to liftedup to that height of Archbishops when as Rome it self was content with a Bishop Somewhat more probable it is that is noted by Writers concerning Lucius his endeavour to settle the Commonwealth and good Laws for Government and to that end did write a Letter to Eleutherius Bishop of Rome for a Model of the Roman Laws probably being induced thereunto by the splendor of the state of the Roman-Church and Commonwealth the onely Favorite of fame in those times through the Northern parts of the World. Things afar off I confess are dim and it is meet that Antiquaries should have the honour due to great after-sight And therefore I might think as some of them have done that the Epistle of Eleutherius to King Lucius is spurious if I could imagine to what end any man should hazard his wits upon such a Fiction or if the incongruities charged against it were incurable but being allowed to be first written in Latine and then translated into British for the peoples satisfaction and in that Language the Original being lost traduced to posterity and then by some Latine Writer in after-ages returned into Latine and so derived to these times all which very probably hath been such occasions of exceptions well arise by mistake of Translators and Transcribers in ignorant times and the substance nevertheless remain entire and true Considering therefore that the matter of that Epistle savoureth of the purer times of the Church and so contrary to the dregs of Romulus I mean the policy practice and language of the Roman Clergy in these latter ages wherein this forgery if so it be was made I must allow it to pass for currant for the substance not justifying the syllabical writing thereof To others it seemeth needless and vain that Lucius should send for a model to Eleutherius when as the Roman Deputies and Legions at home might have satisfied the Kings desire in that particular or their own experience might have taught them grounds sufficient after two hundred years converse with the Romans that they should have little needed a model for that which they saw continually before their view or might have understood by inquiry of their own acquaintance But what could be expected of rough Souldiers concerning form of government of a Common-wealth or if some exceeded the ordinary strain in policy yet they were too wise to communicate such Pearls to conquered Nations that ought to look no higher than the will of the Conquerour and subsist in no better condition than may be controlled by the Supream Imperial Law of the Lord Paramount or if in this they had corresponded to the desires of the Britains yet being for the most part ignorant of the main they could never have satisfied the expectations of a Christian King who desires such a Law as may befriend Religion and wherein no man was more like to give direction than Eleutherius who seeing a kind of enmity between the Roman-Laws and Christ's Kingdom sends to the King a fair refusal of his request upon this ground that Leges Romanas Caesaris semper reprobare possumus He saw that they were not well grounded he therefore refers the King to the sacred Scripture that is truth itself Laws that come nighest to it are most constant and make the Government more easie for the Magistrate quiet for the People and delightful to all because mens mindes are setled in expectation of future events in Government according to the present rule and changes in course of Government are looked at as uncoth motions of the Celestial Bodies portending Judgements or Dissolution This was the way of humane wisdom but God hath an eye on all this beyond all reach of pre-conceit of man which was to make England happy in the enjoying of a better Law and Government than Rome how glorious soever then it was and to deliver that Island from the common danger of the World for had we once come under the Law of the first Beast as we were under his Power we had been in danger of being born Slaves under the Law of the second Beast as other Nations were who cannot shake it off to this day But Lucius lived not to effect this work it was much delayed by the evil of the times nothing was more changeable Then the Emperours grew many of them so vitious as they were a burthen to Mankind nor could they endure any Deputy or Lieutenant that were of better fame than themselves had Some of them minded the affairs of the East others of the North none of them were ad omnia And the Lieutenants in Britain either too good for their Emperour and so were soon removed or too bad for the people of the Land and never suffered to rest free from Tumults and Insurrections So that neither Lucius could prevail nor any of his Successors but passing through continual cross flouds of Persecutions under Maximinus Dioclesian and Maximinianus and many Civil Broiles till the times of Constantine
they were in their original and what overplus they had by Laws And first concerning the Metropolitan In his original his Office was to visit the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reform and in all things to proceed according to the prescript Canon Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practice of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swoln beyond the girt of the Canon and before that England waâ— honoured with that rank of men Metropolitans were become Metronoâ—â—ians and above all rule but that of their own will and through common custom had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the dignity or title which you will was a plant of that virulent nature that would scarce keep under-ground in the time of the hottest persecution For Steven Bishop of Rome liked the title of Universal Bishop And after a little peace it 's a wonder how it grew to that height that it had and no less wonderful that the Saxons gave entertainment to such Potentates Much of whose spirits they might have observed in the entrance of their first Archbishop Austin if God had not given them over to thraldom under the mystery of iniquity of sinful man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godliness God manifested in the flesh as it was taught in simplicity by the rural Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue run thus It belongs to the Metropolian Bishop to rule Gods Churches to govern chuse appoint confirm and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to do And thus though the apparent power of Archbishops was great and unlimited yet what more was wrapped up in that word Churches only time must declare for it is very likely that in those daies it was not understood yet the practice doth not obscurely declare the matter for before this Law was established by Withered in a Council wherein Bertnaldus Archbishop of Canterbury was president and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining or removing them as a Writer saith that his rule was no other than perturbatio and impetus animi But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdoms in this Island and Kings had no further power than their limits afforded them But there was but one Metropolitan for a long time in all the Saxon Territories so as his power was in spirituals over many Kingdoms and so he became indeed Alterius orbis Papa And it was a remarkable testimony of Gods special providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman Chair that they had not torn the European Church into as many Popedoms as Provinces But no doubt God ordered it for a Scourge to the World that Antichrist should be but one that he might be the more absolute Tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their Rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it self and it had been contrary to Austin's principles to have advanced to Bishopricks men better qualified than himself They first ruled the Saxon Church joyntly in the nature of a Presbytery till about Sixty years after Austin's time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder than all and thereupon Theodore Archbishop of Canterbury first divided his Province into Five Diocesses and by appointment of the Kings and People placed Bishops over each every one of them being of the right Roman stamp as himself was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of Three hundred years degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their original condition of meekness and humility But it is a much greater wonder that they should become so purely ambitious as not to endure a thought of the ways of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct teach to see the service of God to be diligently purely administred in publick Congregations to Exhort Reprove by teaching to amend such matters as he should find in life and Doctrine contrary to Religion and accordingly they carried themselves meekly and humbly studying peace truth and medled not with Secular Affairs they are now grown up into State and must now ride on horse-back that were wont to go on foot Preaching the Word and must be respected above the rank of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden Sacred as the word of a King sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerks and Religious houses must stoop under their power their sentence must be definitive and thus advanced they must keep state viz. not go too far to meet Princes in their approach towards them nor to light off their Horses backs to do Princes Reverence at their meeting because they are equal to Princes and Emperours and if any Bishop shall behave himself otherwise and after the old rustical fashion for such are the words of the Canon for disgrace done to their Dignity they must be suspended So as by their own confession Bishops henceforth are Bishops of a new fashion that must incur a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully let him peruse the Canon if he please But this is not sublime enough they must be not only equal but in many respects superiour to Princes for in matters that concern God Omnibus dignitatibus praesunt and more plainly Princes must obey them Ex corde cum magna humilitate and this was
allowed of by Offa the great in a legatine Synod And thus highly advanced Bishops are now consecrated to any work and make every thing Sacred Oaths taken before them are of highest moment and therefore the trial of Crimes before them and the acknowledgment of Deeds of conveyance in their presence are without control Their custody is a sufficient Seal to all weights and measures which they committed to some Clerk whom they trusted and at this day though a Lay-person beareth title of Clerk 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 they had the sole cognizance of all causes criminal 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 scent as the Laws of Athelstane and other his successors sufficiently set forth And thus dressed up let them stand aside that room may be made for their Train CHAP IX Of the Saxon Presbyters THese follow their Lords the Bishops as fast as they can hunt for being of the same Order as the less 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 work under the trick of Canonical 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 curb the people and their eyes to see whether the winds from below blew fair or foul 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 alloye 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 equal Repute with a Baron 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 Secular power but to be honoured as an Angel. Such are these instruments of the Bishops Government and these are put as a glass 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 only touch upon them The first are called Deacons which were attending upon the Presbyters to bring the offerings to the Altar to read the Gospel to Baptize and Administer the Lords Supper Then follow the Sub-deacons who used to attend the Deacons with consecrated Vessels and other necessaries for the Administring of the Sacrements Next these Acolites which waited with the Trapers ready lighted while the Gospel was read and the Sacrament consecrated Then Exorcists that served to disposses such as are possessed by the Devil and office as it may seem of little use yet very ancient for they are found at the Synod at Arles which was within Three Hundred years after Christ's death Lecturers came next who served to read and expound and these were of use when Churches began to multiply and Presbyters grew idle Lastly Ostiaries which used to ring the bells and open and shut the Church-doors These are the several 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 and with much ado 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 nevertheless well paid for their labour CHAP. XI Of Church-mens maintenance amongst the Saxons I Take no notice in this account of the Abbots and Priors and other such Religious men as they were then called nor can I pass them amongst the number of Church-governours or Officers being no other than as a sixth 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 affairs of the publick worship of God and regard of salvation of the Souls 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 Alms and from these arose the maintenance that ascended up in abundance to the higher Region of the Clergy but came again in thin dews scarce enough to keep the Husbandmans hope from despair otherwise had not the Prelates so soon mounted up into the chair of Pomp and State as they did I say these are given in free Alms or more plainly as Alms free from all service and this was doubtless soon thought upon for it was formerly in president with their Heathenish-Priests and Druids as Caesar noteth that they had omnium rerum immunitatem yet with the exception of works of publick charity and safety such as are maintaining of High-ways repairing of Bridges and fortifying of Castles c. and hereof the presidents are numerous The work whereto this wages was appointed was the worship of God and increase of Religion and thus not only many of the Kings Subjects were exempted from publick service but much of the Revenue of the Kingdom formerly imployed for the publick safety became acquitted from the service of the Field to the service of the Bead the strength of the Kingdom much impaired and the Subjects much grieved who in those early times saw the inconveniences and complained thereof to their Kings but could not prevail This was the vintage of Kings and great men but the gleanings of the people were much more plentiful for besides the Courts which swelled as the irregularities of those times increased and thereby enriched the Cofers of that covetous Generation the greatest part whereof ought by the Canon to go to the publick 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 forgo
constant supply for the Church-men out of their Estates as well real as personal especially in the particulars ensuing The most ancient of all the rest was the first-fruits which was by way of eminency called Cyrick-sceate or in more plain English Church free which was always payable upon St. Martins day unto the Bishop out of that house where the party did inhabit upon the day or Feast of the Nativity It was first granted by Parliament in the time of King Ina and in case of neglect of payment or denial it was penal eleven-fold to the Bishop besides a fine to the King as was afterwards ordered by Canutus After the first-fruits cometh to consideration the Revenue of Tythes the which I find no publick Act of State to warrant till the Legatine Council under Offa Although the Canon was more ancient The Bishop at the first was the general Receiver as well of these as of the former and by him they were divided into Three parts and imployed one to the poor another for the maintenance of the Church and a Third part for the maintenance of the Presbyter But in future times many Acts of State succeeded concerning this amongst which that grant of Athelwolfe must be a little paused upon Some Writers say that he gave the tenth Mansion and the tenth of all his goods but Malmsbury saith the tenth of the hides of Land but in the Donation it self as it is by him recited it is the Tenth Mansion But Matth. Westm. understands that he gave the Tenth part of his Kingdom but in the Donation by him published it is decimam partem terrae meae In my opinion all this being by Tradition little can be grounded thereupon The form of the Donation it self is uncertain and various the inference or relation more uncertain and unadvised for if the King had granted that which was not his own it could neither be accounted pious or rational Nor do we find in the Donation that the King in precise words gave the Land or the Tenth part of the Land of his Kingdom but the Tenth of his Land in the Kingdom And the exemplification published by Matth. Westm. countenanceth the same albeit the Historian observed it not But suppose that the Kingdom joyned with the King in the concession and that it was the course to pass it onely in the Kings name yet could not the Tenth Hide Tenth Mansion or Tenth part of the Kingdom be granted without confusion in the possessions of the people For either some particular persons must part with all their possessions or else out of every mans possession must have issued a proportionable supply or lastly a Tenth part of every mans possession or House and Land must be set forth from the rest or some must lose all and become beggars to save others all which are to me equally improbable Nevertheless I do not take the thing to be wholly fabulous but may rather suppose that either a Tenth was given out of the Kings own Demesnes which is most probable or else the Tenth of the profits of the Lands throughout the Kingdom and that it was by publick Act of State and that clause forgotten by Historians And thus might a good president be led to Alfred Athelstan and other Kings who setled Tythes under payment of penalties and appointed the times of payment viz. The small Ttihes at Whitsontide and the great Tithes at Alhollantide Another Tribute was that of Luminaries which by Alfred and Gunthrum was first setled by Law although it had been before claimed by Canon It was payable thrice a year viz. Hollantide Candlemas and Easter at each time half a penny upon every Hide of Land and this was under a penalty also Another Income arose from the Plough and under the name of Plough-Alms At the first it was granted by Edward the Elder generally and the value was a penny upon every plough and in after-times it was ordained to be paid Fifteen days after Easter Next comes a Fee at the death of the party which was commonly called Soul shot and paid before the dead body was buried unto that Church where the dead parties dwelling was So as they never left paying and asking so long as the body was above ground and this it 's probable turned into that fee which was afterward called a Mortuary The incumbent also of every Church had Glebe laid to the Church besides oblations and other casual profits as well arising from houses bordering upon the Church as otherwise All these four last were payable to the Priest of that particular Congregation and had not their beginning till Parishes came to be setled Lastly the zeal of the charity of England was not so cold as to contain it self within it's own bounds They were a dependent Church upon Rome and their old Mother must not be forgotten An alms is granted for under that lowly title it passed first but afterwards called Romscot or Romesfeogh or Heord-penny for it was a penny upon every hearth or chimney payable at the Feast of St. Peter ad vincula and therefore also called Peter-pence it was for the Popes use and was setled under great penalties upon the defaulters It arose by degrees and parcels For first Ina the Saxon King granted a penny out of every house in his Kingdom After him Offa granted it out of every dwelling house that had ground thereto occupied to the yearly value of Thirty pence excepting the Lands which he had purposed for the Monastery at St. Albans This Offa had a much larger Dominion than Ina and was King over Three and twenty Shires After whom Aethelwolf passed a new grant thereof out of his whole Kingdom which was well-nigh all that part which was called Saxony with this proviso nevertheless that where a man had divers dwelling houses he was to pay onely for that house wherein he dwelt at the time of payment Afterward Edward the Confessor confirmed that Donation out of such Tenements as had Thirty pence vivae pecuniae If then it be granted that the Saxon Subjects had any property in their Lands or Tenements as no man ever questioned then could not this charge be imposed without the publick consent of the people and then the assertions of Polydore and the Monks who tell us that Ina and Offa had made the whole Kingdom tributary to Rome must needs be a mistake both in the person and the nature of the gift seeing there is a much more difference between an Alms and a Tribute than between the King and the People Now that it was an Alms and not a Tribute may apear for that the original was a suddain pang of Zeal conceived and born in one breath while the King was at Rome and therefore not imposed as a Tribute Secondly it was ex regali munificentia and therefore free Thirdly it was expresly
was the Synod under Arch-Bishop Dunstan called The National Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz. England Sacrosancta authoritate nostra Synodali unitate and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councils and needless to instance amongst so many particulars The Provincial Synods were sometimes convocated by the King and sometimes by the Arch-bishop and sometimes joyntly The Diocesan were called by the Bishop In the National and Provincial sometimes Kings moderated alone sometimes the Arch-bishop alone and sometimes they joyned together The Assistants were others both of the Clergy and Laity of several Ranks or Degrees and it seemeth that Women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for Government and because few Laws passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and always the Lords and others Yet if the matters concerned the Church in the first act the King though present the Arch-bishop was nevertheless President as it besel at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the Reign of Edward the Elder though the Synod was called by the King yet the Arch-bishop was President Concerning all which it may be in the sum well conceived that in the penning of the Councils aforesaid either the Clergy being Pen-men were partial or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his own person and sometimes deputed the Archbishop thereunto The executing of Laws was for the most part left to the Diocesan Synods yet when the cases concerned great men the more general Councils had the cognizance and therein proceeded strictly sparing no persons of what degree soever Examples we find hereof amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdom for in the quarrel between Cenulphus the King and Archbishop Wilfrid the whole Kingdom was under interdict for six years space and no Baptism administred all that time Nor were they very nice in medling with matters beyond their sphere even with matters of Property for at a Provincial Council for so it is called they bore all down before them even the King himself as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham The like also of another Synod concerning the Monastery of Westburgh It 's true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the Child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much business and by that means a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doors after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their several Diocesses The work therein was to preach the Word as a preparative then to visit and enquire of the manners of the Clergy in the worship of God and of all matters of scandal and them to correct These Synods were to be holden twice every year at certain times and if they met with any matter too hard for them to reform they referred it to the Provincial or National Synod CHAP. XIV Of Causes Ecclesiastical AS the power of Synods grew by degrees so did also their work both which did mutually breed and feed each other Their work consisted in the reforming and setling matters of Doctrine and Practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first precedent of Synods that we have extant and herein it will admit of no denial but in the infancy of the Church the Teachers are the principal Judges of the nature of Errour and Heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes itself party in judging of truth and errour joyntly with the first Teachers And therefore 't is not without reason that in that first Synod although Germanus was called Judex yet the people hath the name of Arbiter and 't is said that they did contestare judicium Blasphemy was questionless under Church-censure but I find no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the Tongue of the Delinquent But it may be feared that neither the Saxons nor their Roman Teachers were so zealous for the honour of Gods Name as to regard that odious sin unless we should account them so holy as that they were not tainted therewith and so needed no Law. But Apostacy was an early sin and soon provided against the Church-censure was allowed of in Britain before the Saxons Church had any breath Afterward it was punished by Fine and Imprisonment by a Law made by Alfred as he provided in like manner for other Church Laws The times anciently were not so zealous for due observance of Divine Worship unless by the Church-men who were the Leaders therein a foreign Canon was made to enforce that Duty long before but it would not down with the rude Saxons they or the greater sort of them were content to come to Church onely to pray and hear the Word and so went away This is noted by that ancient Writer in nature of an imputation as if somewhat else was to be done which they neglected this somewhat was the Mass which in those days was wont to be acted after the Sermon ended And it 's probable that if the Nobles were so ill trained up the inferiour sort was worse and yet find we no Law to constrain their diligence or to speak more plainly it 's very likely the Saxons were so resolute in their Worship as there was either little need of Law to retain them or little use of Law to reclaim them For it 's observed in their late Psalter that the Roman Clergy was not more forward to Image or Saint-worship
may be said of their making of War of defence against Forrain Invasion Matters of publick and general charge also were debated and concluded in that Assembly as the payment of Tithes it is 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 Paganism answered he would so do 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 Micklemote Monasteries were by their general consent dedicated and their Possessions confirmed The City of Canterbury made the Metropolitan Matters also of private regard were there proceeded upon as not onely general grievances but perverting of Justice in case of private persons as in that Council called Synodale concilium under Beornulfus the Mercian King quaesitum est quomodo quis cum justitia sit tractatâ—â— seu quis injuste sit spoliatus The name of which Council called Synodal mindeth me to intimate that which I have often endeavoured to find out but yet cannot viz. that there was any difference between the general Synods and the Wittagenmote unless merely in the first occasion of the summons And if there be any credit to be allowed to that book called The Mirrour of Justices it tells us that this Grand Assembly is to confer of the Government of Gods people how they may be kept from sin live in quiet and have right done them according to the Customs and Laws and more especially of wrong done by the King Queen or their Children for that the King may not by himself or Justices determine Causes wherein himself is actor And to sum 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 gross by noise like to the Lacedemonians who determined what was propounded clamore non calculis yet when the noise was doubtful they took the votes severally The meeting of the Saxons at this Assembly in the first times was certain 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 affairs of his Kingdom and at such times Kings used to make shew of themselves in their greatest pomp crowned with their Royal Crown This custom continued till the times of Henry the second 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 Publick faith both in going and coming unless the party were fur probatus If a Member were wronged the Delinquent payed double damages and fine to the King by a Law made by Ethelbert above a Thousand years ago This priviledge of Safe pass being thus ancient and fundamental and not by any Law taken away resteth still in force But how far it belongeth to such as are no Members and have affairs nevertheless depending on that Court I am not able to determine yet it seemeth that Priviledge outreacheth Members unless we should conceit so wide that the State did suppose that a Member might be a notorious and known Thief Lastly this Assembly though it were called the Wittagenmote 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 run in magna servorum Dei frequentia and that of Ina commune concilium seniorum populorum totius Regni in another Council by him holden The Council of Winton An 855. is said to be in the presence of the great men aliorumque fidelium infinita multitudine and it will appear that it continued thus after the Norman times What power the vulgar had to controul the Vote of the wise men I find not fremitu aspernabantur it is said and probably it was a touch of the rudeness of those times for it was not from any positive Law of the Nation but a fundamental Law in Nature that wise men should make Laws and that the supream Judicature should rest in the Wittagenmote 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 headless conceit provoco ad populum but that Body must be as monstrous as the Anthropophagi whose heads are too nigh their belly to be wise CHAP. XXI Of the Council of Lords THis in the first condition was a meeting onely of the Lords for direction in emergent cases concerning the government and good of the Commonwealth and for the promoting of administration of Justice these the Historian calls 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 work as might concern due correspondency between him and the people and of themselves towards both This work was not small especially in those times of the growth of Kings but much greater by the access of Prelates into their number with whom came also a glut of Church-affairs that continually increased according as the Prelates ambition swelled so as this Council might seem to rule the Church alone in those days whenas few motions that any way concerned Church-men but were resolved into the Prelatical cognizance as the minora Ecclesiae And thus under the colour of the minora Ecclesiae and the minora Reipublicae this mixt Council of Lords came by degrees to intermeddle too far in the magnalia Regni For by this means the worshipping of Images and the Mass was obtruded upon the Saxons by the Roman Bishop and his Legate and the Archbishop of Canterbury and decreed That no Temporal or Lay-person shall possess any Ecclesiastical possessions That elections of Ecclesiastical 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 sum they did any thing that bound not the whole body of the Freemen In which had these Lords reflected more upon the office and less upon the person and not at all upon their private interest they doubtless 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
be a loser by so well-deserving service as in those days that was accounted Nevertheless the English look upon Henry as the fitter man for their turn 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 demeanour and more inclining to peaceable Government which both Normans and English much inclined to as being weary of thirty years service in the Wars And therefore it is not marvellous if they applied themselves to him in a way of capitulation and less wonderful if he hearkned thereunto and yet neither unadvisedly yielded unto by him nor traiterously propounded by them as some in zeal to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himself 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 the 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 Council of the Kingdom all which both the Norman Williams had often confirmed by solemn protestations and promises however their actions upon sudden surprisal were malae consuetudines and exactiones injustae by this Kings own acknowledgment Thus these three Norman Kings made their way to the Throne the first by Arms under colour of Title the second by a kind of Title under colour of Arms and the last by favour but all entred the same by capitulation election and stipulation and for the general 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 several motions Thirdly the Laws and 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 he had did apply it and himself in the setling of the Laws by the advice of Common-council I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility only as some men take the confidence to aver as if they had been eye-witnesses to the actions of those days but by the joynt advice of the grand-Council of the Lords and wise men of the Kingdom of England 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 Lichfield must have the first place which speaks both of a Council 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 down their Laws and Customs This was in the fourth year of his Reign or rather after his entry and as soon as the Kingdom was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdom according unto Law doth strongly pretend that the Parliament had the Legislative power and right of cognizance and judicature in those Laws that concerned the Kingdom in general and for the particular Laws or Customs of several places or Precincts it was referred to a Committee or Jury in every County to set them forth upon Oath Secondly that this Council had power to change Laws may likewise appear in that Act made concerning the introduction of the Canon-Law which shews not only the power of that Council in Church-matters but also that the Canon was no further in force than the same would allow and this was also done by Common council and the Council of the Archbishops Bishops Abbots and all the Princes of the Kingdom which connexion shews plainly that there was a Council besides that of the Prelates and Princes Thirdly in matters of general charge upon the whole body of the people the King used also the help of this Grand-council as may especially appear in the charge of Arms imposed upon the Subjects which was said to be done by the Common council of the whole Kingdom as is witnessed even by the Kings own Law. It may seem also that the grand Officers of the State were elected by such grand assembly of the wise men for we find that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Lichfield resigned his Bishoprick in such like Assembly if the meaning of Lanfrank be rightly understood who saith in his Letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of the Kings which may be called the first Magna Charta in the Norman times by which the King reserved to himself from the free-men of this Kingdom nothing but their free service in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common-council of the whole Kingdom and so asserts in one the liberty of the free-men and of the representative body of the Kingdom These footsteps of the Parliament find we in the Conquerors time besides other more general intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conqueror he was yet made use of this additional power of Parliament to perfect his designs and it may be more often than either of his Sons that yet had less pretence of superlative power to countenance their proceedings William Rufus was a man of resolution no whit inferiour if not surpassing his Father and had wit enough for any thing but to govern his desires which led him many times wild and might occasion conceit that he was almost a mad King though he were a witty man and therefore it is the less marvail if he used not the help of the Common-council more than needs must where Kings many times are told of that which they are loth to know Nevertheless William the second could not pass over thirteen years without a parley with his Commons and Clergy unless he meant to adventure a parley between them and his Brother Robert who like an Eagle eyed his posture though he hovered afar off But Henry the first was more wise
the hands of the Clergie from whom moderation might be expected as from Friends and Neighbours and as Partners in one Ship mutual engagement to withstand the waves of Prerogative of Kings that seldom rest till they break all Banks and sometimes over-reach their own Guard and cannot return when they would And thus it fell out for many times the Pope and Clergie became Protectors of the peoples Liberties and kept them safe from the rage of Kings until the time of restitution should come and became not onely a Wall of defence to the one but a Rock of offence to the other For the Tripple-Crown could never solder with the English nor it with that the strife was for Prerogative wherein if the Clergie gained the Crown lost and no moderation would be allowed For the conquering King was scarce warm in his Throne whenas the Pope demanded Fealty of him for the Crown of England and the King 's own good Archbishop and friend Lanfrank delivered the Message as also Anselm did afterwards to William Rufus which though these Kings had courage enough to deny yet it shewed plainly that the Popes meaned no less Game than Crown-glieke with the King and people the Archbishops and Bishops holding the Cards for the Pope while in the interim he oversaw all The Norman Kings thus braved paid the Popes in their own Coin and refused to acknowledge any Pope but such as are first allowed by their concurrence Thus have we the second bravado of the Canon-Law for as yet it was not so fully entered as it seemed The words of the Act of Parliament it 's true were general yet their sence was left to time to expound and the course of succeeding affairs nevertheless passed with a non obstante For whereas in those days the Clergie claimed both Legislative and Executory power in Church-matters the Normans would allow of neither but claimed both as of right belonging to the Imperial power of this Island originally and onely As touching the Legislative power it is evident that notwithstanding the Canon that had long before this time voted the Laity from having to do with Church-matters yet the Norman Kings would neither allow to the Metropolitans the power of calling Synods nor such meetings but by their lieve although it was earnestly contended for Neither could the Clergie prevail to exclude the Laity out of their Synods being assembled nor from their wonted priviledge of voting therein albeit that for a long time by Canon it had been contradicted The differences between the Clergie and the Kings concerning these and other matters grew so hot that Kings liked not to have any Synods or meetings of publick Council and Archbishop Anselm complained that William Rufus would not allow any to be called for thirteen years together Which by the file of story compared with that Epistle made up the King's whole Reign And this was questionless the cause that we find so little touch upon Parliamentary Assemblies in the Norman times Kings being too high to be controuled and Bishops too proud to obey but necessity of State like unto Fate prevails against all other interests whatsoever and the wisdom of Henry the first in this prevailed above that of his predecessors as far as their Will was beyond his For it was bootless for him to hold out against the Church that stood in need of all sorts to confirm to him that which common Right as then it was taken denied him and therefore though it cost him much trouble with Anselm he re-continued the liberty of publick Consultations and yet maintained his Dignity and Honour seemly well I shall not need to clear this by particulars for besides the publick Consultations at his entrance and twice after that for supply or aid for his Wars and the marriage of his Daughter with the Emperour it is observed that the Archbishop of Canterbury summoned a Council at Westminster but it was Authoritate Regia and that there assembled magnae multitudines Clericorum Laicorum tam divitum quam mediocrium and that upon the third day the Debate was de negotiis saecularibus nonnullis The issue of all was that some things were determinata others dilata and other matters propter nimium aestuantis turbae tumultum ab audientia judicantium profligata Out of which may be probably concluded 1. That the Laity as yet were present in Councils with the Clergie 2. That they were all in one place 3. That they all had votes and that the major number concluded the matter 4. That certain persons used to determine of the major number by the hearing and that the Votes were still clamore non calculis 5. That they held an Order in debating of affairs viz. on some days Ecclesiastical and on other days Secular 6. That all matters concluded were attested by the King who as 't is said did give his consent and by his authority did grant and confirm the same And upon the whole matter it will be probable that as yet Councils and those now called Parliaments differed not in kind although possibly there might be difference of names in regard that some might be immediately and mainly occasioned and urged by Temporal Exigences and others by Ecclesiastical but whether Temporal or Ecclesiastical the first occasion was yet in their meetings they handled both as occasion offered it self Secondly as the Clergie could not attain the sole Legislative power so neither had they the sole Juridical power in Ecclesiastical Causes for not onely in case of errour in the Ecclesiastical Courts was an Appeal reserved to the King's Court as formerly in the Saxons time but even those things which seemed properly of Ecclesiastical cognizance were possessed by the King's Court in the first instance as that of Peter pence which was a Church-tribute and might be claimed to be properly the Church-cognizance much rather than Tythes and yet by the Law of this Kingdom in the Conquerour's time it is especially provided That defaults of payment of that duty shall be amended in the King's Court and a fine for default was given to the King albeit that the Bishop was made the Collector and the Pope the Proprietor And many other particulars which were holden to be of Ecclesiastical cognizance Kings would draw them within the compass of maintaining the peace of the Church which properly belonged to them to defend and so had the cognizance of them in their own Courts and fines for invasion of the Church-rights But because this may seem but colourable and by way of flattery of the Churches right and not in opposition thereof in other things it will appear plainly that Kings were not nice in vindicating their own claim in matters which the Clergie held theirs quarto modo as namely in the case of Excommunication a Weapon first fashioned by the Church-men and in the exercise whereof themselves were in repute the onely Masters and yet in this were mastered by Kings whose Laws
they had in bodies aggregate may appear as followeth The Free-men of England were such as either joyned in the War with Harold against the Normans or such as absented themselves from the way of opposition or enmity and were either waiting upon their own affairs or siding with the Normans And questionless all the sadness of the War befel the first sort of the English whose persons and Estates to make the ways of the first Norman William regular and of one piece never fell so low as to come under the Law or rather the Will of Conquest but in their worst condition were in truth within the directory of the Law of forfeiture for Treason against their Soveraign Lord whose claim was by Title as hath been already noted The other sort either did appear to be the Normans friends or for ought appeared so were and so never offending the Law never suffered any penalty but held their persons and possessions still under the patronage of Law as anciently they and their Ancestors had done And that this was the Normans meaning they publish the same to the World in a Fundamental Law whereby is granted That all the Free-men of the whole Kingdom shall have and hold their Lands and Possessions in hereditary right for ever And by this being secured against forfeiture they are further saved from all wrong by the same Law which provideth That they shall hold them well or quietly and in peace free from all unjust Tax and from all Tallage so as nothing shall be exacted nor taken but their free service which by right they are bound to perform This is expounded in the Laws of H. 1. cap. 4. That no Tribute or Tax shall be taken but what was due in the Confessor's time Under the word Tax is understood monetagium commune per civitates or comitatus so as aids and escuage are not included for they are not charged upon Counties and Cities but upon Tenures in Knight-service nor was Dane gelt hereby taken away for that was a Tax in the Confessor's time and granted by Parliament So then the Norman Kings claimed no other right in the Lands and possessions of any of their Subjects than under and by the Law or common right and they conclude the Law with a sicut which I thus English As it is enacted to them or agreed by them and unto them by us given and granted by the Common-council of our whole Kingdom I leave the words to be criticized upon as the Reader shall please being well assured that the most strained sence can reach no further than to make it sound as an Estoppel or Conclusion to the King and his Successors to make any further claim unto the Estates of his Subjects than by Law or Right is warrantable under which notion Conquest never did nor can come as shall more fully be manifested hereafter But the right genius of this Law will also more evidently appear by the practice of those times which even when Justice it self did most importune so tenderly regarded the liberty of mens Estates that no Distress could issue without publick Warrant obtained and upon three Complaints first made and right not done And when Rape and Plunder was in the heat and men might seem to have no more right than they had power to maintain yet even then this Law was refuge sufficient for such as were oppressed and was pleaded in bar against all usurpations and intrusions under pretext of the Conquerour's right whatsoever as by the Case of Edwyn of Sharneburn may appear Secondly the Freemen of England had vote in the making of Laws by which meum and tuum was bounded and maintained as may appear by what hath been already said nor shall I endeavour further therein Thirdly they had an influence upon the judicatory power For first the matter in fact was determined by the votes of the Freemen as the laws of the Conquerour and of Henry the first do sufficiently manifest Secondly they had an influence in the making of the Sheriff who as well as the Bishop was by Election of the people Thirdly they had an influence upon all Judges by setting a penal Law upon them in case of corruption which if not so penal as to take away life was nevertheless penal enough to make an unjust Judge to be a living pattern and example of misery to teach others to beware Two things more must be added though somewhat collateral to this purpose Concerning the right of the Freemen in the common Mint and in their Villains Concerning the Mint that the Saxons having made it as parcel of the demesues of the Kingdom and leaving to the King onely an overseership reserved the controul and chief survey thereof to the Grand Council of the Kingdom who had slated the same in the Confessour's time But after him the Normans changed the current according to their own liking till by Henry the first it was reduced into the ancient course allowing no money but such as was currant in the days of the Confessour whose Laws also with some alterations by the Conquerour with common advice he also established Concerning the Lords right to their Villains it is observable first that liberty of infranchisement was allowed which could never have been had not the Liberty of the Subject been saved Secondly that Infranchisement properly is the work of the people or the body and the Lord was to deliver his villain by his right hand unto the Sheriff in full County-court and pronounce him free from his Service and shall make room for him by free passage and open doors and deliver him free Arms viz. a Lance and a Sword and then he is made a Freeman as I conceive to all intents and purposes Otherwise there might be manumission as if the villain remained in a City Borough walled Town or Castle by a space of a year and a day and no claim made to his service by his Lord he shall be thenceforth free from the service of his Lord for ever and yet this manumission could not conclude any but the Lord and his Heirs or Assignes nor could it enforce the body to allow that for a Member which was none before Thirdly that notwithstanding they allowed the Lords liberty of infranchisement yet would they not allow them free liberty of disposing them as other Chattels nor by the Law of the Conquerour might they sell their Villains out of the Countrey or beyond Sea for the King had right to the mediate service of every Villain though the Lord had the immediate and therefore that Law might hold in force nevertheless the Ordinance that Anselm made that no Lord should sell his Villain they would never allow for a Law nor did it hold in force CHAP. L. A recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned I Call them Norman Laws because they were allowed by them or continued
in force although many of them had their original from the Saxons One God must be worshipped and one faith of Christ maintained throughout the whole Kingdom This is found amongst the Laws of the King William published by Mr. Selden and was for substance in the Saxons time saving that we find it not annexed to the Crown summarily until now so as by this Law Heresie and Idolatry became Crown-pleas And the like may be collected concerning Blasphemy concerning which it is said as of the Servant's killing his Lord that it is impardonable nor could any man offend herein but it endangered his whole estate The trial of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and possibly in the County-court of the Torne where the Bishop was present Jura divina edocere Peter-pence Ciricksceat and Tythes must be duly paid These are all Saxon Laws united to the cognizance of the Crown as formerly hath been shewed Only the first William especially provided that in case any man worth Thirty pence in Chattels did pay four pence for his part it should be sufficient both for himself and his Retinue whether Servants or Retainers and defaults in payment of these duties were finable to the King. Invasion upon the right of Sanctuary fined This I note not so much in relation to any such Law amongst the Saxons as to the future custom which now began to alter according to the increase or wane of the Moon I do not find this misdemeanour to be formerly so much taken to heart by the Crown nor possibly would it have been at this time but that the King must protect the Church if he mean to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their own right by themselves Amongst all the rest of Church-rights this one especially is confirmed viz. That any Delinquent shall have liberty of Sanctuary to enjoy both Life and Member notwithstanding any Law to the contrary This priviledge was claimed by the Canons but it must be granted by the Temporal power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such privileges in particular yet could not such Grants create such immunities contrary unto or notwithstanding any publick Law of the Kingdom and therefore the Monasteries had their foundations confirmed by Parliament or general assembly of wise men if the first foundation was not laid thereon Working upon the Feast-days punished by Fine Before this time no days for Solemn Worship of God were acknowledged by the Law of the Kingdom but the Lord's days By this all days celebrated or instituted by the Church for that purpose are defended by the civil power and breach of the holy observation of these days made enquirable and punished amongst other pleas of the Crown Breach of the Peace Bloodshed and Manslaughter punished by Fine This was the ancient Law of the Saxons and was continued without alteration till about Alfred's time whose zeal against blood caused Murther to be punished with death but the Danes bringing in a moderation if it may rightly be so called are now seconded by their kindred the Normans who will not admit of punishment by death partly because being a warlike people bloodshed might seem to rank itself under the Regiment of valour and partly because they owed much to that Title for the possession of all that they had gotten in England And to prevent scandal entring upon the rear opinion stept in that a miserable life was more penal than death and therefore in crimes of the deepest die they came to fine and loss of Member and which course prevailed most either to stop or enlarge the course of that sin was left to the disposition of such as intended to make trial But in matters of less malignancy the purss rather smarted than the body wherein they proceeded so far as to punishment of death by violence yet was not the fine to be measured by the judgment of the mercy or rigour of any person but only of the Law itself which set down in certainty both the nature and quantity of the fine and left that memorial upon record of a good mind at least to an equitable and just Government In all these cases of breach of peace the King's Court becomes possessed of the right of cognizance and the peace is now called the King's peace not so much because that it is left only to his providential care to maintain as because the fines for most of those crimes pertained to the King for otherwise there is a sort of crimes that are contra pacem vicecomitis as will be more cleared hereafter I shall conclude this subject with these three Observations First that the Laws in those ancient times of the Normans were so general as they then made no difference between places or persons but whether the peace was broken upon holy or common ground or upon a Lay-man or one in orders the Lay-power seized upon all The second is the care they had for apprehending of the offenders in this kind If the party slain were a Norman or Frenchman the Lord of the Manslayer was charged to have him forthcoming within a certain time or pay the Kings Fine of 46 Marks so long as he had wherewith to satisfie and for what remained the whole Hundred was charged But if the party slain were of any other people the Hundred was immediately charged with the Manslayer and must bring him to answer within a certain time or pay the Kings fine The third and last is the care they had to prevent breach of peace for the future first in setling of night-watches by all Cities Burroughs Castles and Hundreds in such manner as the Sheriff or chief Officers by Common-council shall advise for the best safety of the Kingdom Secondly in forbidding entertainment of unknown persons above three days without surety for their good abearance or becoming their pledge for the publick safety nor to let any persons pass away without testimony under the Ministers and Neighbours hand of their good carriage A Man committing Adultery with a Married Woman shall forfeit to his Lord the price of his life This made the crime enquirable at the common-Law as an offence contra pacem Domini but afterward it was sinable to the King and enquirable amongst the pleas of the Crown by the Law of Henry the first Force upon a Woman to the intent to Ravish her is finable but if a Rape be committed it shall be punished with loss of Member The crime and offences against this Commandment were always punished in the Temporal Courts by Fine at the least and are still in the Normans time prosecuted in the same way notwithstanding the growing authority of
enough to make and maintain a right and that it by Law was a right belonging to some persons before others and that this had been a custom before the former unjust customs crept into the Government of the Conquerour and principally of his Son Rufus And though it be questionable whether it setled first upon the Normans or the English yet it is manifest that if one people had it the other people now coming into union with that people could not in reason except against that custom which the other people had taken up upon so honourable grounds as reason of State which as the times then were was evident and superlative especially the customs being under the regulating of Law and not of any Arbitrary power and can be no Presidents of Relief Marriage and Wardship that after-ages usurped Tenants in Knight-service shall hold their Lands c. acquitted of all Taxes that they may be more able to provide Arms and be more ready and fit for the Kings service and defence of the Kingdom This Law whether it be a renewing of a former custom or an introduction of a new Law it is clear it was upon an old ground That Tenants by Knight-service must be ready for the service of their Lord and defence of the Kingdom whereof afterwards But the Law is that these men shall hold their Lands of that Tenure acquitted of all Taxes though legally imposed upon the body of the Kingdom which must be conceived to be for the publick benefit viz. either for the preparation or maintenance of publick War for in such cases it hath been in all times held unreasonable that those whose persons are employed to serve in the Wars should hold Lands doubly charged to the same service viz. to the defraying of their own private expences in the War and maintenance of the publick charge of the same War besides CHAP. LIII Of divers Laws made concerning the execution of Justice ALthough in proceedings in Cases of vindicative Justice Delinquents might seem to be left rather to the fury than mercy of the Law yet so long as men are under the Law and not without the Law it hath been always held a part of Justice to extend what moderation might possibly stand with the honour of the Law and that otherwise an over-rigid and fierce prosecution of the guilty is no less tyranny than the prosecution of the not-guilty and although violence was the proper vice of these times yet this point of honour must be given to the Normans That their Sword had Eyes and moved not altogether by Rage but by Reason No Sentence shall pass but upon averment of the complaint by Accuser or Witnesses produced Fine and Pledges shall be according to the quantity of the offence By these two Laws of Henry the first the Subjects were delivered from three great oppressions First in making them offenders without Complaint or Witness Secondly in imposing immoderate Fines Lastly in urging extraordinary Bail. Forfeiture of Felons Lands is reduced to a year and a day The Normans had reduced the Saxon law in this case unto their own Last which stretched their desire as far as the estate would bear but this being so prejudicial to the immediate Lords who were no offenders in this case and so contrary to the Saxon law it was both done and undone in a short space by the allowance of Henry the first Intent of Criminal offences manifested by Act punished by Fine or Mulct This by Alfred's Law was punished by Talioes Law but now by a Law of Henry the first reduced to Mulcts Mainperners are not to be punished as Principals unless they be parties or privies to the failing of the Principal This Law of Henry the first repealed the former Law of Canutus which must be acknowledged to be rigorous although not altogether without reason No person shall be imprisoned for committing of a mortal Crime unless first he be attained by Verdict of Twelve men By imprisonment is intended close imprisonment or imprisonment without Bail or Mainprize for otherwise it is apparent that as well by the Saxon as Norman Laws men were brought to Trial by restraint Appeals of Murder restrained within the fourth degree Before this Law Appeals were brought by any of the bloud or kin of the party slain but now by Henry the first restrained The ground seems to be for that affection that runs with the bloud grows so cold beyond the fourth degree that the death of the party is of so small account as it can scarcely be reputed a loss of such consequence to the party as to expose the life or price of the life of the Manslayer unto the claim of such an one And thus the Saxon law that gave the satisfaction in such case to the whole kinred became limited to the fourth degree as I conceive from the Ecclesiastical constitution concerning marriage Two things more concerning juridical proceedings may be noted the one concerning speedy course of Justice wherein they may seem to justifie the Saxon way but could never attain to their pace in regard they yielded so much time to Summons Essoyns c. The other concerns election of Judges by the parties for this we find in the Laws of Henry the first CHAP. LIV. Of the Militia during the Normans time THe power of Militia is either the Legislative or Executory power the Legislative power without contradiction rested in the grand Council of the Kingdom to whom it belonged to establish Laws for the government of the Kingdom in time of peace And this will appear in the preparation for War the levying of War and managing thereof after it is levied For the preparation it consisteth in levying men and munition or of money In all which questionless will be a difference between raising of War by a King to revenge a personal injury done to the King 's own person and a War raised by the whole Kingdom or representative body thereof which is commonly done in defence of publick interest and seldom in any offensive way unless in recovery of a right possession either formerly lost or as yet not fully setled Now although it be true that seldom do injuries reflect upon the King's person alone but that the Kingdom will be concerned therein to endeavour a remedy yet because it may fall out otherwise and Kings have taken occasion to levy War of their own accord in such case they could neither compel the persons of their Subjects or their Estates to be contributary And of this nature I take the War levied by Harold against the Conquerour to be wherein the greatest part of the Kingdom was never engaged nor therefore did it feel the dint of the Conquerour's Sword at all and in this case the Militia must be allowed to such as bear the purse nor can it be concluded to be the Militia of the Kingdom nor any part thereof although the Kingdom may connive thereat But to
shew a kind of rage and some rashness 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 whirlpool of affairs But the change of Laws makes the greater noise wherein what change they suffered may appear from the premises if Writers have dealt uprightly otherwise general imputations without particular instances will never sway Opinion contrary to the current 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-council and for the common good and so long as they are established to be Rules for Government I remember it is affirmed by some of those ancient Writers That the Duke or King would have brought in the Customs of Norway but the earnest Mediation of the English prevailed against it and this 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 Kingdom they could not prevail to bring in the whole body of their Law or of the Customs of Norway 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 Kingdom where the Danes had their principal seat and therefore not altogether strange to the Saxons themselves The sum of which will be this That upon debate a Law must be setled and that not the Law of the Conquerour's own Will nor the Law that suits with his Desire but the ancient Law of the Kingdom And therefore if at any time the unquietness of some of the English brought the King to some thoughts of Arbitrary Rule and to shake off the clog of the Saxon Law it was long e're 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 Customs 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 took away the custom of Gavel-kind and brought the custom of discent to the eldest Son and that Kent saved their Liberties and continued this custom of Gavel-kind 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 meer conceit For besides what hath been already said concerning that custom of Gavel kind if we believe Glanvil the difference was between Lands holden by Knight's-service and in Socage the first of which in his time by ancient custom always descended to the eldest and those Lands that were holden in Socage if not partible by custom in which case they went equally to all the Sons went by custom in some places to the eldest in other places to the youngest so as the Rule of Inheritance in the Norman times was custom as well as in former times And furthermore if the custom of Gavel-kind had been the general custom 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 custom of Gavel-kind happened upon the Lands in Knight-service it had brought all the Sons under the Law of Wardship and had made a ready way to enthral all men of Worth and undo all Husbandry the first whereof had been as advantageous to the King 's private interest as both destructive to the publick Nor is it clear from any Author 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 general regard and publick use are recorded amongst the grounds of English Laws none of which appear to me to be of Norman original 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 foreign Language that the people through ignorance might the rather transgress and thereby forfeit their Estates This if true so sar differed from the nature of a Conquerour as rather proveth that he was put to his shifts Nevertheless 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 Conqueror to entitle himself 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 continual view of publick affairs in those times who speaking of the Conqueror saith That he commended the Confessor's Laws to his Justices in the same Language wherein they were wont formerly to be written lest through ignorance the people might rashly offend And another Author saith That the King had a desire to learn the English Tongue that he might the better know their Law and judge according thereto It is probable nevertheless that the Laws were in the Norman Tongue and it is no less likely that the Pleadings in real Actions especially were also in the same Language else must the Normans be put to School to learn English upon peril of loss of their Estates But that either the written Laws were wholly concluded into the Norman Tongue or that the publick pleading of Causes by word of mouth in all Actions where the issue was left to the Country were in any other Language than English no advised Reader will conceive seeing it had been a madness for an English Jury to pass their Verdict in any case wherein it is likely many of them understood scarce a syllable of the Norman Language much less ought of the matter upon which their Verdict should be grounded Adde hereunto that it is not likely but the Conquerour inhibited the use of the English Language in all matters of publick Record inasmuch as the Charters made by him to corporate Towns and
coming nigh unto the push of pike and the King ready for the spoil of both the Barons and Clergy suddenly close their files and like a stone-wall stood firm to each other till the King wearied with succesless labour was glad to give and take breath confirmed the Liberties of the people by his Charter which is now called the Magna Charta for substance and gave such collateral security for performance on his part as did let the World know the thing was as just as himself had been unjust The worst point in the case was that the people got their own by a kind of re disseisin a desperate remedy for a desperate condition wherein the Common-wealth then lay between life and death upon the rack of the will of a King that would be controuled by nothing but his own appetite and was in the end devoured by it CHAP. LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings UNder the Title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdom and learning and advancement into place of Government and Honour These were in the Saxons times the flower of the people flourishing only from the honour that ascended from beneath their deportment then was full of chear and safety to the people after that Royalty sprung up the influence thereof upon them exhaled such a reciprocal interest back again as made them less regardful of their own root whereas we see the more mature flowers are the more propense to turn head and look downward to their own original This distemper was yet much worse by the coming in of the Normans whose Nobility besides their Titles of honour in their own Countrey obtained by custom such command and power amongst the meaner sort being Souldiers under them in time of the service in the field that when the Wars had breathed out their last neither of them could forget or were very careful to lay aside This was observed by Kings and advantage espyed to climb to the top of Monarchy by the help of these great men whom if they could make their own all would be theirs and therein they had prevailed much more than they did if they had been wise enough to have maintained them in unity but in that failing the Kings were necessitated to take parties and serve the Nobility to save the main and thus continued they a considerable party in the Government of this Kingdom from the Normans for the space of two hundred years 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 chief Commanders in the field This errour of the Kings was soon espied but could not be avoided it is natural 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 over-top all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must bear 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 himself that is a King and where Kings are immoderate in bestowing power it many times works much woe to the people and not seldom sorrow to the Kings themselves The place of the chief Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-general throughout the Kingdom A power and work too great for any one man in the World that can make no Deputies to manage it and yet in those times you shall meet with one man made up of an Arch-bishop a Legat and chief Justice of England or a Bishop a Lord Chancellour a Legat and chief 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 had or 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 Kingdom more Aristocratical than in after-Ages And if their personal authority was of such value how much rather in their joynt assembly or court of Council concerning which I must agree that as in their original 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 work Meetings of Judges or Courts of Judicature and also matters of defensive War because themselves were the Commanders and lastly in matters of sudden concerment to the State not only 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 Councils have done strained their endeavours beyond their reach especially 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 than Rules for Judicature which ordinary Courts may frame or Judgments in particular cases such as are the constitutions at Clarindon in Henry the Second's time and many other Laws which are reported to be made between the King and his Lords Nor can I look upon such Laws otherwise than as upon Judgments 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 bear the name of Laws Ordinances Constitutions or Judgments the word Statute being of latter 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 and so used may appear in that Fines were levied therein and Writs of Right determined as in the great Case between the two Kings of Navar and Castilè referred to the Judgment of Henry the second and tried in this Court it is said that the Tryal was by Plea and if need were by Battel The Judges in this Court were the Baronage of England for the entry of Judgment in that great Case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. So as though doubtless many were absent some being enemies others discontented others upon other occasions yet all might claim their Votes as Barons The President over all the rest was the Chief Justice as if the King were present then himself and by him was the Sentence or Judgment
declared according to the entry in that 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 Councils 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 Juridical power to the three Courts at Westminster viz. the Kings-bench Common-pleas and Exchequer saving still the supreme Judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free voting without impeachment CHAP. LIX Of the state of the Clergie and their power in this Kingdom from the Normans time IF the Prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much less in these times succeeding wherein the Clergie took up the Bùcklers and beat both King and Commons to a Retreat themselves in the interim remaining sole Triumphers in the Field In their first Adventure they paced the Stage no man appearing to oppose Steven then was King by their leave and their Bond-servant and they might have any thing sobeit they would suffer him to enjoy his Crown His Brother the Bishop was the Pope's servant the Church-mens patron and the King's surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better Title than Election Conscience in those times was well enough satisfied in the breach of Covenant on their part when on the King's part it was first broken All this the King saw full well and therefore what can he deny to such Benefactors Vacancies of Churches he readily parts with and his right of investiture of the Mitred Clergie he dispensed so as he open'd the way to his Successours of an utter dereliction of that Priviledge He sees his Brother the Legate deflower the Crown of England by maintaining Appeals from the Courts in England unto the Court of Rome and he says nothing he is contented with the stump of the Crown and with Saul if he be but honoured above or before all others of the people it is enough But the Clergie like the barren Womb hath not yet enough The King hath allowed them Castles and too late he sees that instead of being Defences against the Imperial power of the Empress they are now made Bulwarks against the lawful power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himself is now summoned to answer this before a Legatine Council wherein his Brother is President That was a bold adventure in them but it was extreme rashness in him to appear and plead the Cause of the Crown of England before a Conventicle of his own Subjects And thus to secure Rome of Supremacy in Appeals he suffers a recovery thereof against his own person in a Court of Record and so loses himself to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner The Empress perceiving the power of the Clergie betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospel were now under their decree publish That the Election of the King belongeth unto them and by them the Empress is elected Queen in open Synod Steven's Brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange President in the English Government for Posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the King's return unto his Throne again wherein he continued a friend to the Clergie during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in Title and Power and one that came to the Crown without pre-engagement by Promise or Covenant saving that which was proper for a King. A man he was that knew full well the Interests in the Government the growing power of the Clergie and the advantages lost from the Crown by his Predecessor And to regain these he smooths his way towards these braving men speaks fair profers fair he would act to increase the bounds of the Church He would have the Pope's leave to do him a kindness and sobeit he might gain an interest in Ireland he would take it from the Pope who pretended as Heir of Jesus Christ to have the Islands and utmost parts of the Earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Pope's kindness for the confirmation of the Liberties and Customs of his Crown and Kingdom and no sooner desired than obtained This was a second Example of a King of England but the first of an English King that sought to Rome for Right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple Crown Nor was Henry the second less benign to the Church-men till he found by his dear-bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himself as in that shameful success of the death of Becket may appear wherein he yielded the day up to the Clergie who formerly scorned to stoop to the greatest Potentate on Earth The State of Kings is to be pitied who must maintain a politick affection above and sometimes against Nature it self if they will escape the note of Tyranny in their Undertakings and of a feeble Spirit in their Sufferings For the King having made Becket Chancellor of England and then Archbishop of Canterbury he became so great that his Feathers brushed against the King's Crown who begins to rouse up himself to maintain his Honour and Prerogative Royal. The Bishops side with Becket the King intending the Person and not the Calling singles out the Archbishop and hunts him to soil at Rome yet before he went the King puts the points of his Quarrel in Writing and made both Archbishop and Bishops signe them as the Rights of his Crown and as the Consuetudines Avitae But Becket repenting went to Rome and obtained the Pope's pardon and blessing the rest of the Bishops yielding the Cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then
right and so the Lord became both Judge and Party which was soon felt and prevented as shall appear hereafter Another priviledge of the Lords power was over the Tenants Heir after the Tenants death in the disposing of the Body during the minority and marriage of the same As touching the disposing of the Body the Lord either retained the same in his own power or committed the same to others and this was done either pleno jure or rendring an account As concerning the marriage of the Females that are Heirs or so apparent the Parents in their life-time cannot marry them without the Lords consent nor may they marry themselves after their Parents death without the same and the Lords are bound to give their consent unless they can shew cause to the contrary The like also of the Tenants Widows that have any Dowry in the Lands of such Tenure And by such-like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons Of the power of the last Will. It is a received opinion that at the common-Law no man could devise his Lands by his last Will. If thereby it be conceived to be against common reason I shall not touch that but if against custom of the ancient times I must suspend my concurrence therewith until those ancient times be defined for as yet I find no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last Will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all Conveyances Voluntas donatoris de caetero observetur And therefore nothing was more ordinary than for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. Thus King John appointed Henry the Third his Successour and Richard the first devised the Crown to King John and Henry the first gave all his Lands to his Daughter and William the Conqueror by his last Will gave Normandy to Robert England to William and to Henry his Mothers Lands If then these things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller Free-holds should be of too high esteem to be credited to such Conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposal of the last Will of the possessor nor do I think that either they were thus in this Kingdom or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last Will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vain I have observed the words of Glanvil concerning this point and I cannot find that he positively denyeth all conveyance of Land by Will but only in case of disherison the ground whereof is because it is contrary to the conveyance of the Law and yet in that case also alloweth of a disposing power by consent of the Heir which could never make good conveyance if the Will in that case were absolutely void and therefore his Authority lies not in the way Nor doth the particular customs of places discountenance but rather advance this opinion for if devises of Lands were incident to the Tenure in Gavel-kind and that so general in old time as also to the burgage Tenures which were the rules of Corporations and Cities Vbi Leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common Law And therefore those Conveyances of Lands by last Will that were in and after these times holden in use seem to me rather remnants of the more general custom wasted by positive Laws than particular customs growing up against the common rule It is true that the Clergy put a power into the Pope to alter the Law as touching themselves in some cases for Roger Arch-bishop of York procured a faculty from the Pope to ordain that no Ecclesiastical persons Will should be good unless made in health and not lying in extremity and that in such cases the Arch-bishop should possess himself of all such parties goods but as it lasted not long so was himself made a president in the case for being overtaken with death e're he was provided he made his Will in his sickness and Henry the Second possessed himself of his Estate And it is as true that Feme coverts in these days could make no Will of their reasonable part because by the Saxon Law it belonged joyntly to the Children Nor could Vsurers continuing in that course at the time of their death make their Will because their personal Estate belonged to the King after their death and their Lands to their Lords by escheat although before death they lie open to no censure of Law but this was by an especial Law made since the Conquerour's time for by the Saxon-Law they were reputed as Out-Laws Nevertheless all these do but strengthen the general rule viz. That regularly the last Will was holden in the general a good conveyance in Law. If the Will were only intended and not perfected or no Will was made then the Lands passed by descent and the goods held course according to the Saxon Law viz. the next Kinsmen and Friends of the intestate did administer and as administrators they might sue by Writ out of the Kings Court although the Clergy had now obtained so much power as for the recovery of a Legacy or for the determining of the validity of the Will in its general nature it was transmitted to the Ecclesiastical Court. CHAP. LXIII Of the Militia of this Kingdom during the Reign of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that from the Norman times the power of the Militia rested upon two principles the one the Allegiance for the common defence of the King's person and honour and Kingdom and in this case the King had the power to levy the force of the Kingdom nevertheless the cause was still under the cognizance of the great Council so far as to agree or disavow the War if they saw cause as appeared in the defections of the Barons in the quarrel between King Steven and the Empress and between King John and his Barons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Arms either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extream prejudice and the Kingdoms
damage Nor did the former principle oversway the latter although it might seem more considerable but only in the times of civil peace when the Lords were quiet and the people well-conceited of the Kings aims in reference to the publick which happiness it was Henry the Second's lot to enjoy for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate not only gained honour abroad but much more amongst his own people at home who saw plainly that he was for Forraign employment of honour to the Kingdom and not only contented with what he had in England but imbarqued together with the Laity against the growing power of the Clergy for the defence and honour of the priviledges of the Crown wherein also the Liberties of the people were included They therefore were secure in the Kings way and suffered themselves to be engaged unto the Crown further than they or their Ancestors formerly had been out of pretence of sudden extreme occasions of the Kingdom that would not be matched with the ordinary course of defence For the King finding by former experience that the way of Tenures was too lame a supply for his acquests abroad and that it had proved little better than a broken reed to the Crown in case of dispute with the people aimed at a further reach than the Lords or Commons foresaw and having learned a trick in France brought it over although it was neither the first nor last trick that England learned to their cost from France which was a new way of levying of Men and Arms for the War by assessing upon every Knights Fee and upon every Free-man of the value of sixteen Marks yearly their certain Arms and upon every Free man of ten Marks yearly value their certain Arms and upon every Burgess and Free-man of an inferiour value their certain Arms. 2. That these should be ready prepared against a certain day 3. That they should be kept and maintained from time to time in the Kings Service and at his command 4. That they should not be lent pledged sold or given away 5. That in case of death they should descend to the Heir who if under age should find a man to serve in his stead 6. That in case the owner were able he should be ready at a certain day with his Arms for the service of the King ad fidem Domini Regis Regni sui 7. That unto this every man should be Sworn I call this a new way of levying of Arms and Men not but that formerly other Free-men and Burgesses found Arms albeit they held not by Knight service for it was so ordained by the Conquerors Laws formerly used but now the King thrust in two clauses besides the altering of the Arms the one concerning the Oath whereby all men became bound the other concerning the raising and ordering of Men and Arms which here seems to be referred to the King only and in his service and this I grant may imply much in common capacity viz. that all the power of the Militia is in Henry the Second But this trick catched not the people according to the Kings meaning for the words ad fidem Regis Regni still left a muse for the people to escape if they were called out against their duty to the Kingdom and taught the doctrine which is not yet repealed viz. That what is not according to their Faith to the Kingdom is not according to their Faith to the King. And therefore they could find in their hearts sometimes to sit still at home when they were called forth to War as may appear in one passage in the days of King John who had gathered together an Army for the opposing of foraign Power at such time as the Pope had done his worst against him and the whole Kingdom which Army was of such considerable strength as I believe none since the Conquest to this day exceeded or parallell'd it But the King 's mean submission to the Pope's Legat so distasted the Nobles and People as they left him to his own shifts and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthned himself against the Nobles yet the Lords coming from London brought on the sudden such a party as the King was not able to withstand and so he came off with that conclusion made at Renny mead which though in it self was honourable yet lost the King so much the more because it was rather gained from him than made by him CHAP. LXIV Of the Government of Henry the third Edward the first and Edward the second Kings of England And first a general view of the disposition of their Government ONe hundred and ten years more I have together taken up to add a period to this first part of discourse concerning English Government principally because one spirit of arbitrary rule from King John seemeth to breath throughout the whole and therewith did expire The first that presents himself is Henry the third begotten by King John when he was in the very first enterprize of oppression that occasioned the first Barons bloudy Wars and which this King was so miserable as to continue for the greatest part of his Life and Reign and yet so happy as to see it ended about four years before he died Although the soul be not ingendred from the parent yet the temperature of the body of the Child doth sometimes so attemper the motion of the soul that there is in the Child the very image of the Father's mind and this Henry the third lively expressed being so like unto his Father John in his worst course as if his Father 's own spirit had entred into him and animated him in all his ways He brought in with him the first president of Conscience in point of Succession by inheritance in the English Throne for the stream of probabilities was against him He was a Child and the times required a compleat man and a man for War. He was the Child of King John whose demerits of the State were now fresh in the minds of all men He was also designed to the Throne by his Father's last Will which was a dangerous president for them to admit who had but even now withstood King John's depositing of the Crown in the Pope's hands as not being in the power of a King of England to dispose of his Crown according to his own will. Yet leaping over all these considerations and looking on Henry the third as the Child of a King that by good nouriture might prove a wise and just King they closed about this spark in hope it might bring forth a flame whereby to warm themselves in stormy times Nor did their hopes soon perish for during his minority the King was wise to follow good Counsel and by it purged out all the ill humours that the Kingdom had contracted in the rash distempers of his
demise he died a death meet to be for ever blotted out of the thoughts of all Subjects but to be had in everlasting remembrance of all Kings For if a Kingdom or Parliament misleads the King at the worst he is but misled by his Council but if he be drawn aside by favorites he must thank his own lust in the one he hath but the least share in the burthen in the other he must bear 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 weakness or power of these Kings of whom the first and last had little to ground upon but their own will and the other I mean Edward the first had more wisdom and power but was otherwise distracted by foraign and more urgent employments so as the work fainted before it came to its full period The contest was between the King and Barons who till those days were rather the great and richer sort of men than Peers although they also were of the number I am not so sharp-sighted as to reach the utmost intentions of the Lords but their pretences are to such publick nature as it is plain that if their private interest was wrapped up therein they were inseparable And I shall never quarrel the Lords aim at private respects whenas it is plain the publick was so importantly concerned and yet I will not justiâ—ie all that I find written concerning their Words and Actions The Speech of the E. of Cornwal to his his elder Brother and King Henry the Third I will neither render up my Castle nor depart the Kingdom but by the judgment of the Peers and of Simon the E. of Leicester to the same King that he lyed and were he not a King the Earl would make him repent his word and of the Lords that they would drive the King out of his Kingdom and elect another and of the E. Marshal to Edward the first that he would neither go into Gascoine nor hang and such other do 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 allay if the general rudeness of the time the King 's injurious provocations and the passions of cholerick 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 Kingdom 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 Counsels to conform to the Laws and in maintaining that trust that was reposed in them in keeping off such sinister Counsels and invasions as might violate the Laws and Liberties or hinder the current 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 original was Democratical mixt with an Aristocracie 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 Forreign parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the War yet in time of peace was not of that height as to rule alone I mean that whereas the Lords formerly had the principal executory power of Laws setled in them they never were absolutely devested of that power by the access 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 concur the people generally sided with the Lords and so in conclusion the King suffered in the quarrel From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this co-partnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherways be supposed where Councils are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appear 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 is noised for them who are equally if not more entrusted with the Common-wealth than the King by how much the Counsellors are trusted more than the Counselled 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 War. It is 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 add to what hath been already said first that Knight-service was for the defence of the Kingdom principally Secondly that the greatest power of Knight-service rested with the Lords not only in propriety and ownership but in point of direction for the benefit of the Commonwealth and lastly that the state of the times now was such as the Kingdom was oppressed by strangers Counsels and the Counsels of the Kingdom rejected that instead of Law Garrisons of strangers ruled that no man could own his own that the Subjects were looked upon as enemies and of all this the King made the principal instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgement of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to Kingly dignity than was in those times practised And yet there was a difference also in the occasions of War for certainly that last War with Edward the second was more fatal and yet less warrantable and in the issue declared that there was more of the Queen therein than of the Lords who knew a way of removing Favourites from the King without removing the King from the Kingdom or driving him out of the World. In all which nevertheless it cannot be concluded that the Lords party was encreased more than in the former Kings times for the loss of the field in Henry the Thirds time against the Prince kept them in awe all the succeeding Reign although they were not then tongue-tyed and their second loss against Edward the Second which was yet more sharp questionless quelled their spirits although they lost no right thereby and encreased the Kings party much
the Church saving to every one their proper debts And thus since the Conquest the Church-men encroached 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 appear in that case of a Bastard dying without Issue and intestate the Lord shall have his personal Estate 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 custom still continued Nor doth the testimony cited out of Bracton prove any other than that the Ancestor hath free power to order his Estate as he pleaseth and that the Children shall have no more than is left unto them by their Ancestor either in his Will or in case of dying intestate by the custom 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 and if in the same Town satisfaction must be made within forty days Purveyance was ancient provision for the necessities of the publick and so far was commendable seeing it is not the common case of all men to regard the publick above their own private interest therefore the publick must provide for it self by their means in whom the publick is most concerned And this was in those elder times but in two cases viz. of Kings and Castles in the one of which the Government is principally concerned in the other the publick defence For it may be well conjectured that Castles were either first made in places commodious for habitation and great Towns gathered to them for their better safety or that the Towns were first gathered in places of commodious habitation and then Castles were made for their better defence Or if they were imposed upon them by the Victor to keep them in awe they were nevertheless by continuance together become tractable and conspired for the mutual defence of each other But as touching such Cittadels or Castles that were set in solitary places they may seem rather first intended for the particular defence of some particular Man and his Family and neighbouring Tenants and therefore in the purveyance for Castles it seems the proper Town wherein it is principally liable to that duty because their safety is more principally interested and therefore Prizes there taken may be paid at a day to come but in all other places immediately Nevertheless this lasted not long for the Souldiers found out a trick of favouring their own Quarters and preserving them in heart against a back Winter knowing that at such times it is better to seek for provision nigh than to be compelled to seek far off But this Stratagem was cut off by the next King who inhibited all manner of purveyance in any other Town than in the same Town wherein the Castle is seated This was a charge that was but Temporary and occasional That which was more lasting and burthensome upon the Subjects was purveyance for the King which nevertheless cannot be avoided by reason of the greatness of his Retinue especially in those days and if they should have their resort to the Market the same could not be free to the people for that the first service must be for the Kings Houshold and so what scraps will be left for the Commons no man can tell It was therefore necessary for the Kings Family to be maintained by purveyance and to avoid the many inconveniencies which might and did arise in those spoiling times It was ordained 1. That it should be Felony for any Purveyor to purvey without Warrant 2. That none but the Kings Purveyor must purvey for the Kings house and that he must purvey onely for the Kings house and to purvey no more than is necessary and to pay for the things they take And because Kings were oftentimes necessitated for removal from place to place purveyance of carriage was also allowed And in case the Subjects were grieved either by more purveyance than was necessary or by non-payment for the Commodities so taken or with composition for the Kings debts for such purveyance the Offenders were liable to fine and imprisonment Or if they were grieved by Purveyors without Warrant the Offender was to be proceeded against as in case of Felony He that serveth in Castle-guard is not liable to payment of Rent for that service nor is be compellable to either so long as be is in the service in the Army By the ancient custom none but a Knight might be charged with the guard of a Castle belonging to the King for the letter of this Law mentioneth onely such and therefore to hold by Castle-guard is a Tenure in Knight-service And it seemeth that Rent for Castle-guard originally was consistent with Knight-service and that it was not annual but promiscuously Knights might either perform the service or pay Rent in lieu thereof and upon occasion did neither if the King sent them into the field And lastly that a Knight might either do the service in his own person or by his Esquire or another appointed by him thereto No Knights nor Lords nor Church-mens Carriages nor no mans Wood shall be taken against the Owners consent nor shall any mans Carriages be taken if he will pay the Hire limited by the Law. Church-men were exempted from charge to the Kings Carriages meerly in favour to the Canon which exempted the Goods of the Clergy from such Lay-service nevertheless the complaints of the Clergie formerly mentioned shew that this was not duly observed Knights and Lords were discharged not onely for the maintenance of their Port but more principally because they were publick servants for the defence of the Kingdom in time of War and the Kingdom was then equally served by themselves and their equipage and their carriages as a necessary assistant thereunto The King shall have no more profit of Felons Lands than the year and a day and the Lord is to have the remainder Anciently the Lords had all the Estate of Felons being their Tenants and the King had onely a Prerogative to waste them as a penalty or part thereof but afterwards the Lords by agreement yielded unto the King the year and a days profit to save the Lands from spoil and in continuance of time the King had both the year and day and waste Fugitives also were in the same case viz. such as deserted their Country either in time of need or such as fled from the Tryal of Law in criminal cases for in both cases the Saxons accounted them as common Felons Nevertheless the two customs of Gloucester
legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia and therefore no man ought to be urged upon such difficulties unless by the express Law of the Land. The old way of Trial was first to bring in a Complaint and Witnesses ready to maintain the same and therefore both Appeals and Actions then used to conclude their pleas with the names of Witnesses subjoyned which at this day is implied in those general words in their conclusions Et inde producit sectam suam that is he brings his sect or suit or such as do follow or affirm his complaint as another part also is implied in those words Et hoc paratus est verificare For if the Plaintiffs sect or suit of Witnesses did not fully prove the matter in fact the Defendant's Averment was made good by his own Oath and the Oaths of Twelve men and so the Trial was concluded No Free-man shall be imprisoned or disseised of his Freehold or Liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peers Nor shall Justice be sold delayed or denied This is a comprehensive Law and made up of many Saxon Laws or rather an enforcement of all Laws and a remedy against oppression past present and to come And concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the Law and his liberty likewise so as he shall be shut into no place by Imprisonment nor out of any place by Banishment but shall have liberty of ingress and egress His Estate both real and personal shall also be under the protection of the Law and the Law also shall be free neither denied nor delayed I think it needless to shew how this was no new Law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the sum of all the foregoing discourse tendeth thereto Merchants shall have free and safe passage and trade without unjust Taxes as by ancient custome they ought In time of War such as are of the Enemies Countries shall be secured till it appear how the English Merchants are used in their Countries That this was an ancient Law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon Laws So as it appeareth that not onely the English Free-men and Natives had their liberties asserted by the Law but also Forreiners if Merchants had the like liberties for their persons and goods concerning Trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the Law as the Free-men had And unto this Law the Charter of King John added this ensuing It shall be lawful for every Freeman to pass freely to and from this Kingdom saving Fealty to the King unless in time of War and then also for a short space as may be for the common good excepting Prisoners Outlaws and those Country-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this Law of free passage out of the Kingdom was not anciently fundamental but onely grounded upon reason of State although the Freemen have liberty of free passage within the Kingdom according to that original Law Sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the Third as was also another Law concerning the Jews which because it left an influence behind it after the Jews were extinct in this Nation and which continueth even unto this day I shall insert it in this short sum After death of the Jew's debtor no usury shall be paid during the minority of the Heir though the debt shall come into the King's hand And the debt shall be paid saving to the Wife her Dower and maintenance for the Children according to the quantity of the Debtors Land and saving the Lord's service and in like manner of debts to others The whole doctrine of Vsury fell under the Title of Jews for it seemeth it was their Trade and their proper Trade hitherto It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times but by the Confessor's Law it was made penal to Christians to the forfeiture of Estate and Banishment and therefore the Jews and all their substance were holden to be in nature of the King Villains as touching their Estate for they could get nothing but was at his mercy And Kings did suffer them to continue this Trade for their own benefit yet they did regulate it as touching Infants as by this Law of King John and the Statute at Merton doth appear But Henry the Third did not put it into his Charter as I think because it was no liberty of the Subjects but rather a prejudice thereto and therefore Edward the First wholly took it away by a Statute made in his time and thereby abolished the Jews Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly In all alienations of Lands sufficient shall be left for the Lords distress Submitting to the judgement of the learned I conceive that as well in the Saxon times as until this Law any Tenant might alien onely part of his Lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord Paramount other than was formerly due to him without the Lord's consent and for the same reason could they not alien the whole Tenancy to bind the Lord without his express license saving the opinion in the book of Assizes because no Tenant could be enforced upon any Lord lest he might be his Enemy Nevertheless it seemeth that de facto Tenants did usually alien their whole Tenancy and although they could not thereby bar the Lord's right yet because the Lord could not in such cases have the distress of his own Tenant this Law saved so much from alienation as might serve for security of the Lord's distress But Tenants were not thus satisfied the Lords would not part with their Tenants although the Tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all saving to the Lords their services formerly due and thus the Lords were necessitated to grant Licenses of alienation to such as the Tenants could provide to buy their Lands Nor was this so prejudicial to the Lords in those days when the publick quiet was setled as it would have been in former times of War whenas the Lord's right was maintained more by might and the aid of his Tenants than by Law which then was of little power The 35th Chapter I have formerly mentioned in the Chapter concerning
Richard the First were made by the consent of Archbishops Bishops Abbots Earls Barons and Knights of the whole Kingdom for what the great men gained they gained for themselves and their Tenants And the truth is that in those times although publick damage concerned all yet it was ordinary for Kings to make a shew of summoning Parliaments whenas properly they were but Parliamentary meetings of some such Lords Clergy and others as the King saw most convenient to drive on his own design And therefore we find that Henry the Third about the latter part of his Reign when his Government grew towards the dregs he having in the Kingdom Two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings but Five and twenty Barons and One hundred and fifty of his Clergy Nevertheless the Law of King John was still the same and we cannot rightly read the Law in such Precedents as are rather the birth of will than reason Fourthly that no aids were then granted but such as passed under the title Escuage or according thereunto for the words are No Escuage shall be demanded or granted or taken but for redeeming the King's person Knighting of his Son 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 custom 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 notwithstanding the King 's Negative voice for the words are The matter at that day shall proceed according to the counsel of those that shall be present although all do not come and therefore that clause in the King's Oath quas vulgus eligerit may well be understood in the future and not in the preter tense Last of all though not gathered from the Text of this Law whereof we treat yet being co-incident with the matter it is observable that though the Clergie were now in their ruffle and felt themselves in their full strength yet there befel a posture of state that discovered to the world that the English held not the interest of the Clergie to be of such publick concernment or necessary concurrence in the Government of the Kingdom as was pretended For the Clergie finding Assessments of the Laity so heavy and that occasions of publick charge were like to multiply daily they therefore to save the main stock procured an Inhibition from Rome against all such impositions from the Laity and against such payments by the Clergie and in the strength of this they absolutely refuse to submit to aid 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 divided from it and not onely outed of all priviledge of Parliament but of all the priviledge of Subjects into the state of praemunire and thus set up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry the Third not satisfied with this ancient and ordinary way of Assessment upon ordinary occasions took up that extraordinary course of Assessment upon all the Freemen of the Kingdom which was formerly taken up onely in that extraordinary occasion of redeeming of the King 's or Lord's person out of captivity and common defence of the Land from piracy and under the Title of Dane-gelt which was now absolutely dead and hanged up in chains as a monument of oppression Nevertheless it cannot be denied but that in former times the Freemen 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 appear and whereby it is probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the Third the same suiting also with the third observation foregoing doth not a little favour the same for it is expresly set down that in lieu of the King's confirmation of the Charter of Liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earls Barons and Knights but also the Freemen and all the Kingdom 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 and so they might have been choaked 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 blood-shed and themselves into so many troubles to avoid their own acts unless the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loth to publish the same to all men It is a strange vanity in great men to pretend love to Justice and yet not endure to be bound thereto whenas we see that God himself 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 fain they would undo but could not It is true it was at the first but a King's 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 avoided but by surrender from the whole body 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 The King shall have the custody of Fools and Ideots Lands for their maintenance and shall render the same to their Heirs And concerning Mad-men and Lunaticks the King shall provide a Bailiff for their maintenance rendering account to them when they are sober or to their Administrators It is no less liberty or priviledge of the People that Fools and Mad persons
sad experience of the latter Government of Kings in these times had taught the Knighthood of England to hold for the future Ages No Tenant in ancient Demesnes or in Burgage shall be distrained for the service of a Knight Clerks and Tenants in Socage of other Mannors than of the King shall be used as they have been formerly Tenants in ancient Demesne and Tenants in Burgage are absolutely acquitted from foreign service the one because they are in nature of the King's Husbandmen and served him and his Family with Victual the other because by their Tenure they were bound to the defence of their Burrough which in account is a Limb or Member of the Kingdom and so in nature of a Castle guard Now as touching Clerks and Tenants in Socage holding of a Subject they are left to the order of ancient use appearing upon Record As concerning the Clergy it is evident by what hath been formerly noted that though they were importunate to be discharged of the service Military in regard that their profession was for Peace and not for Bloud yet could they never obtain their desire for though their persons might challenge exemption from that work yet their Lands were bound to find Arms by their Deputies for otherwise it had been unreasonable that so great a part of the Kingdom as the Clergie then had should sit still and look on whilst by the Law of Nature every one is engaged in his own defence Nor yet did the profession of these men to be men for Peace hold always uniform some kind of Wars then were holden sacred and wherein they not onely adventured their Estates but even their own Persons and these not onely in a defensive way but by way of invasion and many times where no need was for them to appear Tenants in Socage also in regard of their service might plead exemption from the Wars for if not the Plough must stand still and the Land thereby become poor and lean Nevertheless a general service or defence of the Kingdom is imposed upon all and Husbandmen must be Souldiers when the debate is who shall have the Land. In such cases therefore they are evocati ad arma to maintain and defend the Kingdom but not compellable to foreign service as the Knights were whose service consisted much in defence of their Lord's person in reference to the defence of the Kingdom and many times policy of War drew the Lords into Arms abroad to keep the Enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Foot-men in their Armies but the better and more wealthy sort of them found Arms of a Knight as formerly hath been observed yet always under the pay of the common Purse And if called out of the Kingdom they were meer Voluntiers for they were not called out by distress as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law nevertheless remaining still entire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword. For though Kings pretended danger to the publick oftentimes to raise the people yet the people would give credit as they pleased Or if the King's Title were in question or the Peoples Liberty yet every man took liberty to side with that party that liked him best nor did the King's Proclamation sway much this or that way It is true that precedents of those times cry up the King's power of arraying all Ships and men without respect unless of age or corporal disability but it will appear that no such array was but in time of no less known danger from abroad to the Kingdom than imminent and therefore might be wrought more from the general fear of the Enemy than from the King's command And yet those times were always armed in neighbouring Nations and Kings might have pretended continual cause of arraying Secondly it will no less clearly appear that Kings used no such course but in case of general danger to the whole Kingdom either from foreign Invasion as in the times of King John or from intestine Broils as in the times of Henry the third and the two Edwards successively And if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that general arrays were not levied by distress till the time of Edward the first and then onely for the rendezvouze at the next Sea-coast and for defence against foreign Invasion in which case all Subjects of the Kingdom are concerned by general service otherwise it can come unto no other account than that Title Prerogative and therein be charactered as a trick above the ordinary strain Fourthly those times brought forth no general array of all persons between the ages of sixteen years and sixty that was made by distress in any case of Civil War but onely by Sheriffs summons and in case of disobedience by summons to appear before the King and his Council which sheweth that by the common Law they were not compellable or punishable Lastly though these arrays of men were sometimes at the charge of the King and sometimes at the Subjects own charge yet that last was out of the road-way of the Subjects liberty as the subsequent times do fully manifest And the like may be said of arrays of Ships which however under command of Kings for publick service were nevertheless rigged and paid out of the publick charge The sum of all will be that in cases of defence from foreign Invasion Kings had power of array according to the order of Law if they exceeded that Rule it may be more rightly said they did what they would than what they ought CHAP. LXXI Of the Peace WAR and Peace are two births by several venters and may like the day and night succeed but can never inherit each to other and for that cause they may claim to belong to one Father and that one and the same power should act in both and yet it is no good Maxime That he that is the chief Commander in War ought to be the chief in the order of Peace For it naturally befalls that War especially that which we call Civil War like some diseases in the body does rather breed ill humours than consume them and these must be purged by dieting the State and constant course of Justice unto which the rugged Waves of War have little or no affinity if they have not enmity Nevertheless the wisdom of our Ancestors thought it most meet to keep their Kings in work as well in time of Peace as of War and therefore as they anciently referred the principal care thereof to the Lords who together
Horse nor defended without a Sword. As touching other alterations it might be done upon good advice as not being deemed méet that such as were no Knights but in Estate should be armed in every respect like as the Knights were And thus we have an ancient custom of maintaining Arms by every Free man for the defence of the Kingdom first made uncertain by the avarice of Kings and negligence of the Free-men and brought into an arbitrary charge at length reduced to a certainty upon all sorts of Inhabitants by a Statute-Law if so it then were unto which every man had yielded himself bound by his own consent But to what end is all this I said it was for the defence of the Kingdom and so it was in the original and yet also for the safety of the King in order thereunto and for the safety and maintenance of the peace of every member of the whole body This in one lump thus will not down with some who will have this assessment onely to be for keeping of the peace against Routs and Riots but not sufficient nor intended to be supply for War when Edward the First calls for it because Edward the First shall not have his power confined within the compass of a Statute but to be at liberty of array as he should think meet and it is not to be denied but the words of this Law run thus viz. That the intent thereof is for preserving of the peace but those general words will not bear the power of a restrictive sence for certainly the peace is as well preserved by providing against War as against Riots and against Forrein War as Intestine Mutinies And that the Statute intended the one as well as the other will appear because it was made in relation to former precedents of Henry the Third and they speak plainly that their intent was to strengthen the Kingdom against dangers from abroad The words of the Historian are clear that Henry the Third charged all that had 15 libratas terrae and upwards should undertake the Arms of a Knight ut Anglia sicut Italia militia roboraretur And because he had threats from beyond Sea by the defection of the Gascoigns therefore he caused Writs to issue forth throughout the Kingdom that secundum pristinam consuetudinem assessment of Arms should be secundum facultates and in one of the Writs published by the Historian the express assessment of H. 3. formerly mentioned is particularly set down Nor are these Arms thus assessed so slight as men would pretend for the Arms of the first Rank were the compleat Arms of a Knight and their Estates equal thereunto for those 15 libratae terrae amounted to 780 Acres of Land as the late publisher of Paris his History hath it and is very nigh the reckoning of Henry Huntington who as hath been mentioned layeth a Helmet and Coat of Mail unto eight Hides of Land which according to Gervase of Tilburie's account cometh to 800 Acres every Hide containing one hundred Acres These therefore were better than Hoblers And the succeeding Ranks found Arms also proportionable to their Estates as considerable as the times could find for such as were of constant use and might be supplied with other Weapons as occasion served and as they might be of most benefit for the service Furthermore whereas it 's said that the wisdom of the Parliament might be questioned if they intended no better provision against an Enemy than against a Thief or Rogue I should desire the consideration of those men whether are those Thieves and Rogues in Troops or bodies and well armed or are they a sort of scattered Out-laws lightly armed to fly away when they have gotten the prey If they were in the former posture I pray what difference in point of difficulty of suppressing between them and so many Enemies and if it was discretion in the Parliament to make this provision against the one certainly these with the Knight-hood of the Kingdom with as much discretion will be sufficient provision against the other But if these be looked upon in the later sence I fear the discretion of the Parliament would have been much more questioned in arming all men that have any ability to suppress Thieves and Rogues against which the ordinary Watch and Ward of the Kingdom was an ancient and approved remedy and sufficient safe-guard And I would fain know of these men whether it be for the safety of Edward the First or any other King to arm the whole body of the people especially in times of jealousie for suppressing of Thieves and Robbers whenas it may be done by a guard of known men in every County with much more ease and less charge to the people Lastly whereas it is endeavoured to make this Statute but a temporary provision and taken up for the present condition of affairs when Thieves and Robbers went with great strength and in multitudes This might be I grant of some efficacy if it had been introductio novi juris but it being grounded upon a former Custom the ground of that custom which was defence of the Kingdom must be the warrant of the Law otherwise the present inconvenience might be remedied by a present Order and needed not the help of a Law that should rest upon former Custom or provide for future generations Nevertheless if all be granted viz. that this Statute is but a present Order that the Arms therein are too slight to resist an Enemy and the end thereof was onely to enable the Kingdom against Thieves and Robbers yet could not Edward the first pretend to have any power to assess Arms at pleasure upon occasion of War for the defence of the Kingdom nor is there any precedent 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 Free-men and their Lands Nor did King John disclaim the same but pursued it and yet if there be any precedent 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 himself summons to defend himself themselves and the Kingdom of England all men that ought to have Arms or may have Arms and such as have no Arms 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 years before his death held himself to the assessment to Arms onely of such as had Lands and at this time of exigency others unarmed were summoned
the conclusion The Dukes of Lancaster and York forsake the Court Favourites step into their rooms The old way of the eleventh year is re-assumed Belknap and others are pardoned and made of the Cabinet The pardon of the Earl of Arundel is adnulled contrary to the advice of the major part and the Archbishop the Earl's Brother is banished The Lords forsake the wilful King still the King's Jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further work The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the Joynts of the Kingdom in correspondency And he was ill requited for all his Estate is seized upon The Duke of Hertford and his party are looked upon by the people as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament down goes all the work of the tenth and eleventh years Parliament which had never been if that Parliament had continued by adjournment The King raiseth a power which he calleth his Guard of Cheshire-men under the terrour of this displaying Rod the Parliament and Kingdom are brought to Confession Cheshire for this service is made a Principality and thus goes Counties up and Kingdoms down The King's Conscience whispers a sad message of dethroning and well it might be for he knew he had deserved it Against this danger he entrenches himself in an Act of Parliament that made it Treason To purpose and endeavour to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by engagement from the Parliament but he missed the right conclusion for want of Logick For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it self and then hath the King gained no more than a false birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted That all procurers of the Statute of 10 Richard the Second and the Commission and procurers of the King's assent thereto and hinderers of the King's proceedings are adjudged Traytors All these reach onely the Branches the Root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same it is further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the King's Justices for offences by them committed in Parliament without the King's consent and all gainsayers are Traitors These and the like Aphorisms once voted by the Cheshire-men assented unto by the Parliament with the Kings Fiat must pass for currant to the Judges and if by them confirmed or allowed will in the King's opinion make it a Law for ever That the King in all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the Tenth year and Belknap's entertainment and so dealt warily their opinion is thus set down It belongeth to the Parliament to declare Treason yet if I were a Peer and were commanded I should agree So did Thorning under-write and thereunto also consented Rickill and Sir Walter Clopton the last being Chief-Justice of the King's Bench the first Chief-Justice of the Common-pleas and the second another Judge of the same Bench. The sum in plainer sence is that if they were Peers they would agree but as Judges they would be silent And thus the Parliament of England by the first of these four last-mentioned conclusions attainted themselves by the second yielded up their Liberties by the third their Lives and by the last would have done more or been less And to fill up the measure of all they assigned over a right of Legislative power unto six Lords and three Commons and yet the King not content superadded that it should be Treason for any man to endeavour to repeal any of their determinations The Commonwealth thus underneath the King tramples upon all at once for having espied the shadow of a Crown fleeting from him in Ireland he pursues it leaves the noble Crown of England in the base condition of a Farm subject to strip and waste by mean men and crosses the Irish Seas with an Army This was one of England's Climacterical years under a Disease so desperate that no hope was left but by a desperate Cure by sudden bleeding in the Head and cutting off that Member that is a principle of motion in the Body For it was not many Moneths e're the wind of affairs changed the King now in Ireland another steps into the Throne The noise hereof makes him return afar off enraged but the nigher he comes the cooler he grows his Conscience revives his Courage decays and leaving his Army his Lordship Kingdom and Liberty behind as a naked man submits himself to release all Homage and Fealty to resign his Crown and Dignity his Titles and Authority to acknowledge himself unworthy and insufficient to reign to swear never to repent of his resignation And thus if he will have any quiet this wilful man must be content for the future neither to will nor desire And poor England must for a time be contented with a doleful condition in which the King cannot rule and the Parliament will not and the whole body like a Chaos capable of any form that the next daring spirit shall brood upon it CHAP. II. Of the State of the King and Parliament in relation of it to him and him to it A King in Parliament is like the first-born of Jacob The excellency of Dignity and the excellency of Power but alone unstable as water Examples of both these we have in these two Kings Whereof the first was Crowned by the Parliament and Crowned it the latter also Crowned it but with Thorns and yet the Parliament in all held on that wise way that it neither exceeded its own bounds nor lost its own right I shall enter into the consideration of particulars under these heads First In relation more immediately to the interest of the King Secondly To the interest of the Kingdom in general The King though higher than all the people by the head and so hath the Prerogative of Honour as the most worthy yet his strength and abilities originally do rise from beneath otherwise he is but like a General without an Army the Title big but airy and many times his person subject to so much danger that instead of drawing the Eyes of all the people to look upon him with admiration they are drawn to look to him with observation and in this
respect he may be said to be less his own man and more the Kingdoms than any of the inferiour sort This befel in both these Kings in a special manner each entring upon the grand Government of a Kingdom before they were able to understand the work or govern themselves and therefore were under power of Protectors for the guard of their Persons and their Education and of the Parliament for Counsel and Direction in Cases relating to the Kingdom The child of a mean man when its Parents are dead is Filius Amici but a King is Filius Populi to be by them trained up in such manner that he may be Pater Populi when he is come to age In the mean time though he be a King yet his Person like a precious Jem must not out of the Ring but must be directed by Council though under some kind of restraint and the Counsellors all the while no Offenders in such cases against the Prerogative Royal. And therefore though it be true that Kings grow faster than other men and sooner come to full age than they yet Edward the Third now in his sixteenth year might not pass over Sea into France though it were for restoring of Peace but by direction of the Parliament nor is it meet in such cases that Kings should stand upon the Prerogative of a Negative Secondly it may likewise be said That his Family is less his own as he is a man than other mens For private Families are no further under the publick Law than in relation to the publick Peace to punish after breach made but the Families of Kings are looked upon by all in relation to the honour and profit of the Publick not onely because the King's servants have by their nigh attendance upon his person a more powerful influence into his actions which may reflect a malevolent Aspect upon the whole course of affairs if they be not better ordered that are so nigh him but more especially in regard that the government and order of the Royal Family trencheth deep upon the Honour of the Kingdom and Purses of the People who are concerned to see the same accommodated suitable to the State and Port which the Nation would bear forth to the World. And therefore for the Parliament to intermeddle in the King's Family is not foreign nor new Alice Piers was a Familiar if not of the Family of Edward the Third yet both her self and others of that Family were complained of as a grievance Richard the Second was once a young man and ever a young King and what Edward the Third wanted onely in his Youth and in his infirm old Age this man ever wanted for he that knew not how to govern himself how much less could he govern his Family And if in this condition the Parliament become his Stewards to set a yearly Survey and Check upon his Servants and Family in order to the good order of the same and Kingdom other wise men must conclude it did that which was just though Richard the Second and those of his mind think not so But this is not all Kings have not onely such as serve the outward man but some that serve their Consciences of old time called Confessors in these days without name for fear of Superstition yet the thing remaineth still in some well-favoured Chaplain and their work is to lead the King's Conscience in dark ways or rather into them Commonly he hath a devout outside and that is the King's Idol but if while his eye be towards Jerusalem his mind be towards the dead Sea the King is his and then the blind leads the blind Like some Ignis fatuus to such as know it not No man is so well known by his company as Kings are by these men and these men by their actions Although some have been so witty as to cheat the whole Generation of Mankind by entertaining holy men to be their Chaplains themselves the mean time without any spark of that holy Fire Yet this King was not so cunning he had a Confessor of his own choice and according to his own heart who was complained of as a grievance and the Parliament removed him So nigh they ventured even to invade the King 's own Conscience if it may be called Conscience that will acknowledge no Law but that of its own mind Thirdly the King's Revenue was under the check and controul of the Parliament for it befals some Princes as other men to be sometimes poor in abundance by riotous flooding treasure out in the lesser currents and leaving the greater channels dry This is an insupportable evil because it is destructive to the very being of affairs whether for War or Peace For the King's Treasure is of a mixt nature much of it being intended for publick service as himself is a publick person And for this cause he hath Officers of several natures attending upon his Treasury Some for Land some for Sea some for the general Treasure of the Kingdom some for that of the Houshold and some for the Privy Purse The common end of all being to maintain State in time of Peace and Strength against time of War. Because it is no easie matter to maintain the just proportions for each of the said ends it is the less wonder that such a brave Prince as Edward the Third should labour under want for maintenance of the Wars and so lavish a Spendthrift as Richard the Second should labour under more want to maintain his port and countenance in peace And therefore though it be true that the publick Treasure is committed to the King as the chief Steward of the Realm yet it is as true that he is but a Steward and that the Supreme survey of the Treasure resteth in the Parliament who are to see that the Treasure be not irregularly wasted to reduce the same into order and for that end to call the Treasurers and Receivers to account to see to the punishing of such as are unfaithful and encouraging of others that are faithful For when by extravagant courses the Treasure is wasted by extraordinary courses it must be supplied which ever is out of the Subjects Purses And in such cases it is great reason that they should observe which way the course lies of such Expences If then in such cases sometimes the Parliament hath stayed the issuing out of the King's Revenue for some time or otherwise viewed and examined the same charged it with conditions 22. E. 3. n. 29. 14 R. 2. n. 15. limited it to certain uses and in case of misuser refused to levy or make payments the case will be without dispute that the Parliament ordered the publick Treasure as they saw most need But much more if we consider how the greatest part of this Treasure was raised viz. not from the old Revenues of the Crown but by new Impositions Levies and Assessments laid upon the People even what they pleased and in
and grand Trust of the whole Kingdom committed to the Parliament And the practice of these times is not much discrepant whether we regard such as are for advice or execution Of the first of these are those whom we commonly call the Privy Council whose advice in course toucheth first upon the King's Person but by reflection worketh strong impressions upon the People so far as the influence of the King's power extends And therefore it is not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the general good of the whole Kingdom For many times Kings are either above or beneath themselves and in such cases if the Council be of the King's suit he is of the deeper dye and proves more Malignant to the People Edward the Third growing into great opinion in the World his proportion exceeds his own portion and the Peoples good wills to boot they think the fault is in the Privy-Council and an Inquisition is set upon it So also they do in his fiftieth year when he grows downward And the like in the beginning of Richard the Second's Reign he being now a Youth and therefore unstable in his Resolutions and unable to make Election So as upon the whole matter if the King fall short in point of Judgment or Resolution or inordinate in his Affections but more especially where they observe the major or more considerable part of the Council to draw towards a designe in such cases as these the Parliament as its own duty undertook to settle a good Council about the King's person that might advise him during their recess For the Privy-Council is never more it self than when it is an Epitome of the Common-Council of the Kingdom In like manner such Officers as concern execution of Law and Counsel are as narrowly to be enquired into for if their motion be irregular it is less material what the rule be The Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdom such as are the Chancellors Judges and Justices or to confirm or displace them or bind them by Oath The Rolls of the eighth fourteenth fifteenth and thirty-sixth years of Edward the Third and the sixth tenth and eleventh years of Richard the Second do manifest this sufficiently I have done with the Subject-matter or work of the Parliament in the mutual relation of the King and it the manner of proceeding was either joyntly with the King or without him and either joyntly with the two Houses or severally and either immediately by themselves or their Committees As touching the first it is evident that in all matters wherein gain ariseth to the Crown from the people by Subsidy or otherwise the strength of the Grant by Act of Parliament resteth in the two Houses and that the King's Assent is but pro forma as touching that matter and therefore such Grants have been made as tended in some measure to derogate either from the King's Wisdom care or fidelity yet even these have passed with the Royal Assent though the full Assent or good will of the person of the King was not correspondent thereto as in these Cases formerly noted where Subsidies were given with Limitations and Conditions and upon rendring account to the people And it is as evident that where the King's person is disabled to understand as in case of Infancy there the Royal Assent can bear little weight with it but most of all in the King's absence where either the Assent is put thereto by Commissioners that know not the King 's particular mind or the Act is done onely by the Houses in nature of Ordinances and yet these of force to bind all parties but the King. But nothing more debased the Royal Assent in these times than a trick that Edward the Third plaid in the midst of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advice in laying out nor of equity in levying and collecting moneys for the Nerves of War. This forward Warrier in the heat of his Atchievements finds his strength benummed for want of money he leaves off comes home rages against his Archbishop to whom he had committed the care of provision for his War and the Archbishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Country whose oppressions saith he instead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calm After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advice of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of mind to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or endeavoured it And thus is England put to School to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward the Third his dissembling assent makes a Law Lastly Whether by a Proclamation by advice of Nobles and Wise men he can declare that he dissembled with his Parliament and therein not dissemble the Royal Assent so as to bring all the Laws made in any Kings time into question at least during his Life However the result may be it is evident the Royal Assent gets no honour hereby and the Statute as little that hath suffered this Proclamation all this time to pass among the number of the Statutes in Print as a Law whenas many Statutes that are Laws of not are left out as useless Although in the general the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their several operations the House of Commons intermedled more in the matter of Fact the House of Lords in matter of Right although in either of these there is a mutual aspect from both In matters of Judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor Judgement by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the Judgement of the Peers Which Laws seem to be but declarative of the former Law and in the nature of reviving that power into Act which was formerly laid asleep and doth strongly imply that the ultimate act in
way is different from the common Road both in it's original and in the course of proceedings nor could it otherwise be considering the condition of the Nations and the people of the same interested in common Traffique The people thus interested as much differed from the other sort of Dry men if they may be so called as Sea from Land and are in nature but as March-men of several Nations that must concentre in some third way for the maintenance of Commerce for peace-sake and to the end that no Nation may be under any other Law than its own The condition of the Nations in the times when civilized Government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the general grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and down with it that men might know upon what terms they held their own wheresoever they went and upon what terms to part with it for their best advantage In its original therefore this Law may be called Imperial and likewise in the Process because it was directed in one way of Trial and by one Law which had its first birth from the Imperial power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Nevertheless this became no Gem of Prerogative to the English Crown for if England did comply with forrein Natives for its own benefit it being an Island full of the Sea and in the common Road from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but suitable to its self and it did so comply as it saved the main Stake by voluntary entertaining those Laws without being imposed upon by Imperial power For the Saxons came into this Kingdom a free people and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the King's Edict For though it were granted that Richard the First reduced the Sea-Laws in the Isle of Oleron yet that the same should be done without advice of Parliament in his return from the Holy land is to me a Riddle considering what Histories do hold forth concerning his return through Germany nor can that be good evidence to entitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon Laws Statutes Franchises and Customs established and that this Establishment was by the King and the Council This Law was of a double nature according to the Law of the Land one part concerning the pleas of the Crown and the other between party and party for properly the King's Authority in the Admiralty is but an Authority of Judicature according to Laws established which both for process and sentence are different from the Common-Law as much as the two Elements do differ yet not different in the power that made them I shall leave the particulars to be enquired into by them that shall mind it elsewhere and only touch so much as shall reflect upon the main Government This power was executed by Deputies diversly according as the times and opportunities were for War or Peace and either transitu or portu What was done in time of War or whilst the Ship is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further than this that in the first times Kings were wont to divide the work of Judicature and of War into several hands The power of War and Peace they committed unto men of approved Courage and Skill in that service and therefore generally not to the men of highest rank who had neither Mind nor Skill for a work of such labour dyet and danger This power passed under divers names sometimes by grant of the custody of the Sea-coasts sometimes of the parts and Sea coasts sometimes by being made Captain of the Sea-men and Mariners and sometimes Admiral of the Ships It was a great power and had been much greater but that it suffered a double diminution the one in the time for three or four years commonly made an end of the command of one man and at the best it was quam diu Regi placuerit the other diminution was in circuit of the power for all the Maritine Coasts were not ordinarily under the power of one man but of many each having his proper precinct upon the South or North East or Western shores and under the Title of Admiral in the times of Edward the First and forwards who brought that Title from the Holy Land. Nevertheless about the end of the times whereof we now Treat the custody of the whole Sea began to settle in one hand under the Title of Admiral of the English Seas and the place was conferred upon men of the greatest rank and so continued ever afterward The power of Jurisdiction or Judicature all this while remained distinct and it seems was setled in part in the power of the Sheriff and Justices For by the Law the Sheriff and Justices had cognizance of matters between the high water and the low water mark and what was done Super altum mare was within the directory of the Admiral these were but few things and of small consideration the principal of them being concerning War or Peace and those only within the English Seas But after Edward the Third had beaten both the French and Spaniards at Sea the people grew much more towards the Sea and became so famous that the greatest Lords thought the Regiment of Sea-affairs worthy of the best of their Rank and were pleased with the Title of Admiral whilst they left the work to others and so the Admiral became a person of more honour and less work than he had been formerly The greatness of the honour of this place thus growing soon also began to contract greatness of power beyond what it had formerly and this was principally in matter of Jurisdiction For not contented with the power of a chief Justice of War and Peace within the Seas which was his proper dominion the Lord Admiral gained the same within the low water mark and in the main streams below the next Bridge to the Sea and in all places where Ridels were set and yet these places were within the body of the County Nor did he endeavour less to gain in matters of distributive Justice for although he had a legal Jurisdiction in things done upon the Sea so far as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no less difficult to keep
Duke of Gloucester but that the Heir apparent of the House of York steps in to rescue And new troubles arise in Gascoign to put an end to which the Queens party gains and takes the Duke of York's word for his good behaviour gets this Law to pass expecting hereby if not a full settlement at home yet at least a respit to prevent dangers from abroad during the present exigency And thus upon the whole matter the Lords and Privy Council are mounted up by the Commons to their own mischief CHAP. XVII Of the Clergie and Church-Government during these times IT was no new thing in the World for Princes of a wounded Title to go to the Church-men for a Plaister and they are ready enough to sing a Requiem so as they may be the gainers The Princes therefore of the House of Lancaster had offended against common sence if they had not done the like themselves being not onely guilty in their Title but also by a secret Providence drawn into one interest together with the Church-men to support each other For Henry the Fourth and Archbishop Arundel meeting together under one condition of Banishment become Consorts in sufferings and Consorts in honour for Society begotten in trouble is nourished in prosperity by remembrance of mutual kindnesses in a necessitous estate which commonly are the more hearty and more sensible by how much other contentments are more scant But the Archbishop had yet a further advantage upon the Heart of Henry the Fourth though he was no man of power yet he was of great interest exceedingly beloved of the English Clergie and the more for his Banishment-sake Now whatsoever he is or hath is the Kings and the King is his the sweet influence of the Archbishop and the Clergie enters into his very Soul they are his dearly beloved for the great natural love as he says to the World they bear to him what he could he got what he got he gave to the Church Thus the Family of Lancaster becoming a mighty support unto the Clergie Roman as it was they also became as stout maintainers of the crackt Title of that younger House So was fulfilled the old Prophecie of the Oyl given to Henry the First Duke of Lancaster wherewith Henry the Fourth was anointed That Kings anointed with that Oyl should be the Champions of the Church Now for the more particular clearing of this we are to consider the Church absolutely or in relation to the Political Government of the people Concerning the latter many things did befal that were of a different piece to the rest in regard that the Lords for the most part were for the Clergie and they for themselves but the Commons began to be so well savoured with Wickliff's way that they begin to bid defiance at the Clergies self-ends and aims and because they could not reach their Heads they drive home blows at their Legs A Parliament is called and because the King had heard somewhat feared that the people were more learned than was meet for his purpose and that the Parliament should be too wise he therefore will have a Parliament wherein the people should have no more Religion than to believe nor Learning than to understand his Sence nor Wisdom than to take heed of a Negative Vote But it befel otherwise for though it was called the Lack-learning Parliament yet had it skill enough to discern the Clergies inside and Resolution enough to enter a second claim against the Clergies Temporalties and taught the King a Lesson That the least understanding Parliaments are not the best for his purpose For though the wisest Parliaments have the strongest sight and can see further than the King would have them yet they have also so much wisdom as to look to their own skins and commonly are not so venturous as to tell all the world what they know or to act too much of that which they do understand But this Parliament whether wise or unwise spake loud of the Clergies superfluous Riches and the Kings wants are parallel'd therewith and that the Church-men may well spare enough to maintain Fifteen Earls Fifteen hundred Knights Six thousand two hundred Esquires and one hundred Hospitals more than were in his Kingdom This was a strong temptation to a needy and couragious Prince but the Archbishop was at his Elbow The King tells the Commons that the Norman and French Cells were in his Predecessor's time seized under this colour yet the Crown was not the richer thereby he therefore resolves rather to add to than diminish any thing from the maintenance of the Clergie Thus as the King said he did though he made bold with the Keys of St. Peter for he could distinguish between his own Clergie and the Roman The people are herewith put to silence yet harbour sad conceits of the Clergie against a future time which like a hidden fire are not onely preserved but encreased by continual occasions and more principally from the zeal of the Clergie now growing fiery hot against the Lollards For that not onely the people but the Nobles yea some of the Royal Bloud were not altogether estranged from this new old way whether it was sucked from their Grandfather Duke John or from a popular strain of which that House of Lancaster had much experience I determine not These were the Dukes of Bedford and Gloucester Bedford was first at the helm of affairs at home whilst the King acted the Souldiers part in France as ill conceited of by the Clergie as they slighted by him At a Convocation once assembled against the Lollards the Duke sent unto their Assembly his Dwarf as a great Lollard though he was a little man and he returned as he went even as Catholick as any of them all Non tam despectus à Clero quam ipse Clerum despiciens atque eludens This and some other sleights the Clergie liked not they therefore find a way to send him into France to be a reserve to his Brother And in his room steps forth Humphrey Duke of Gloucester that was no less cool for the Roman way than he Henry the Fifth was not more hearty in Romes behalf for although he was loth to interrupt his Conquest abroad with contests at home yet he liked not of advancements from Rome insomuch as perceiving the Bishop of Winchester to aspire to a Cardinals Hat he said That he would as well lay aside his own Crown as allow the Bishop to take the Hat. Nor was he much trusted by the Clergie who were willing he should rather engage in the Wars with France than mind the Proposals of the Commons concerning the Clergies Temporalties which also was renewed in the Parliament in his days Above all as the Lancastrian House loved to look to its own so especially in relation to Rome they were the more jealous by how much it pretended upon them for its favour done to their House And therefore Henry the Fourth the most obliged of all the
rest looked to the Provisors more strictly than his Predecessors had and not onely confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annual Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute And further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Laws had saved the right to the true patron both against Pope and King. And thus the English Kings were Servants to the Church of England at the charges of Rome whilst the Popedome being now under a wasting and devouring Schism was unable to help it self and so continued until the time of Henry the Sixth at which time the Clergie of England got it self under the power and shadow of a Protector a kind of Creature made up by a Pope and a King. This was the Bishop of Winchester so great a man both for Birth parts of Nature Riches Spirit and Place as none before him ever had the like For he was both Cardinal Legate and Chancellor of England and had gotten to his aid the Bishop of Bath to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First More craftily by colloguing with the Nobility who now had the sway in the Kings Minority but they would none An answer is given by the King that he was too young to make alterations in matters of so high concernment yet he promised moderation The Clergie are put to silence herewith and so continue till the King was six years elder and then with Money in one hand and a Petition in the other they renew their suit but in a more subtile way For they would not pretend Rome but the English Churches Liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy See but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Laws Their Clonclusion therefore is a Prayer That the King will please to allow the Jurisdiction of their Ecclesiastical Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependant on the See of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might endanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergie are put to a retreat from their Reserve at Rome all which they now well saw yet it was hard to wean them The Cardinal of Winchester was a great man and loth to lay down his power but his own Tribe grew weary of him and his power For the greater some Church-men are unless they be better than men the inferiour and better Church-men are worse than men At length therefore the Cardinal is Vnlegated and that power conferred upon the Archbishop of Canterbury a man formerly well approved but by this very influence from Rome rendred suspected Which he perceiving protested against the exercise of the Jurisdiction Legatine without the Kings allowance and so mannerly crept into the Chair The English Kings and Clergie having thus attained the right discerning of each other begin to take up a new way of policy which was to hold nothing of the Popedom but the Form of Worship and Discipline but as touching Jurisdiction they held it a high point of wisdom either to fetch it nigh at home or to be silent in the matter having now found a main difference between the Popes Will and the Church-Law and therefore as formerly the Convocation and Parliament joyned in excluding of Foreigners from Church-livings under the notion of Intelligencers to Enemies abroad So neither now will they allow any provisions for English men and upon this ground the Dean and Chapter of York refused to admit the Bishop of Lincoln to the See of York although assigned he was thereto by Pope Martin and he the darling of Nations being by joynt consent advanced to the Triple Crown that had been formerly tripled amongst three Popes and troubled all Europe And whereas during the Tripapalty much money had been levyed here in England to serve for the recovery of the Popedom to one of English interest now by joynt consent the same is seized upon and stopped as fewel from the fire and spent by Henry the Fifth in the recovery of a Kingdom in France that should have been employed in recovery of a Popedom at Rome These things concurred to give a wound to the Popedom that was never cured to this day Nevertheless the English Clergie was no loser by all this but gained in the whole sum For as it made them more depending on the Crown so it made the Crown more fast to them from which they had received more real immunities and power than the Pope ever did or was able to give them and might expect to receive many more What personal respects these three Kings shewed them hath been already touched Henry the Sixth added one favour which made all the rest more considerable Hitherto they had used to meet in Convocation as upon the interest of Rome and little notice was taken of them now the Nation owns them and in some respects their work and it is granted That the Clerks of Convocation called by the Kings Writ and their Menial Servants shall have such priviledge in coming carrying and going as the Members of the Parliament have So as though they be not Members yet they are as Members if they assemble by the Kings Writ and not onely by the power of the Legate or Metropolitan The antiquity of this Court is great yet not so great as hath been supposed nor is it that Court of the Ordinary called the Church Gemot mentioned in the Laws of Henry the First as not onely the works thereof therein set down do sufficiently declare but also it is evident that in Henry the Second's days the Grand Councils of this Kingdom were joyntly mixed both of Clergie and Laity Nor could the Clergie shut the Laity from their Councils till about the times of Richard the First or King John. From which time forward the Laity were so far from protecting of them that till these times now in hand all their care was to keep them from violating the Liberty of the people That they were many times notwithstanding called together by the Kings Writ before these times hath
suit and according to the course of the Admiralty by complaint saving matters of death to the cognizance of the Admiral But this was soon found defective for Justice done in the dark is many times more respective and less respected and therefore within a few years it is provided That Offenders against the Kings Truce upon the Sea or in any of the Ports shall be proceeded against in the Chancery before the Chancellor who hath power given him of calling to his assistance some of the Judges to execute the Statute of 2 H. 5. foregoing by a handsome contrivance For that Statute was once and again suspended for the rigour that was used by the former Conservators who being borderers upon the Sea for their own peace spared as few as they could which had so discouraged the Seamen that the Kingdom had been almost utterly bereaved of its strength at Sea. Nevertheless all this while these Laws were but penal and not remedial for the parties wronged and therefore another Law is made to give the Chancellor and Judges power to make restitution and reparation Thirdly The Chancery gained upon the Ecclesiastical Court. For whereas by the Canon the Church-men were to be judged by their Superiours according to Ecclesiastical and Ordinary Jurisdiction and the iniquity of the times was again returned to that height that Parents could not enjoy their own Children but the little ones were allured stoln away and detained in Cloisters nor did the Church-men afford remedy in such cases A Law was made that upon complaint hereof made to the Chancellor the Provincial should be by him sent for and punished according to his discretion Lastly The Chancery encroached upon the Common Law For whereas the stirs between the two Houses of York and Lancaster began to rise men made their dwellings in places of security and strength Women likewise and other persons flying thither for refuge especially such of them as had most to lose these were contrary to the Law of common honesty urged to engage their Estates unto the desires of such to whom they had fled for refuge and sometimes compelled to marry before they could gain their liberty It was now provided that all such complaints should be heard and determined by the Chancellor Secondly As touching the Ministerial power of the Chancery this likewise was enlarged in making of Process to compel appearance in cases of forcible Entries Murders Manslaughters Robberies Batteries Assemblies in nature of Insurrections Riots and Plunder committed by Servants upon their Masters goods before their Masters death and suchlike offences now grown common and in need of sudden remedy Thus as the work and power of the Chancery grew so did the place and person of the Chancellor grow more considerable raised now from being the Kings Secretary for no better was he in former times to be the Kingdoms Judge and of such trust that although the King might make election of his own Secretary yet the Parliament would first know and allow him that must be trusted with the power over the Estates of so many of the people And therefore did in these times both place and displace him as they saw expedient In a word he is become the Kingdoms Darling and might be more bold with the Common Law than any of his Peers CHAP. XIX Of the Courts of Crown-Pleas and Common Law. AS the Chancery on the one side did swell and increase so was the Kings-bench in an ebb the Council-Table in the Star-Chamber on the one side and the Itinerant-Courts in the Country intercepted and drew away much to their own shares making themselves fat the Kings-bench lean and the Rural Courts for Crown-Pleas almost to starve The Crown-Pleas formerly had been determinable in the Kings-bench Gaol-delivery Oyer and Terminer and many of them by Justices of the Peace Coroners and Sheriff The Gaol-delivery was afterwards united to the Judges of Assize and if one of them were a Clergy-man then to the other and chief men of the County This was useful for the Publick but not beneficial for some men and therefore they laboured for Commissions especially directed to parties that they thought would partake but these were found soon to be dangerous soon taken away and the Gaol delivery restored to the Judges of Assize as formerly The Commissions of Oyer and Terminer were sued forth upon extraordinary Emergencies and Offences wherein the State was much concerned for speedy Execution In former times both these and Gaol-deliveries were but rarely had and then granted unto some that perchance knew more of the Case than before-hand was meet to be known Edward the Third amended this Errour and ordered that no Commissions of Oyer and Terminer should issue forth but unto Commissioners named by the Court and not by the party complaining But the Judges of Assize are now on the growing hand both for Honour Use and Power the rather because their persons are of high repute in the Benches at Westminster which are the Master-pieces of Judicature and their Iters are constant and ordinary Nevertheless the Judges of Assize though they have the Gaol-delivery annexed to them yet have they not that absolute power of the Kings-bench but are still under the rule of their Commission which is not alterable but Parliament and which by it was altered by way of adding new powers as new crimes arose that required the eye of the State to provide And so the Judges of Assize by degrees grew to be the ordinary Administrators of Justice throughout the Kingdom yet holding still forth to them a limited power to hear and determine in some Cases but in others onely to enquire and certifie as in the case of false Returns by the Sheriff of persons elected for the Parliament And also in cases concerning the Statutes of Labourers and unlawful Games and Pastimes in which case the Certificate is to be made to the Chancellor And also in cases concerning Liveries contrary to the Statutes wherein the Certificate is to be made to the Kings-bench which power in this last case continued in that manner by the space of thirty years and then by another Statute they had the power to determine such cases before themselves In like manner they had power to hear and determine cases of falshood in counterfeiting and corrupting of Money by washing clipping c. And also defaults committed by Sheriffs Bayliffs and their Officers against the Statutes of Forcible Entries and of wearing of Liveries as aforesaid These were signs of much confidence and trust in them and yet notwithstanding not in these nor in these were the Penalties by Fine left to the Arbitry of the Judges no nor to the Justices of the Kings-bench but were by the very Letter of the Law determined Nor would the Parliament trust these men with doing Justice in the cases aforesaid in their own Counties where they dwelled nor did it think expedient to
power of Excommunication it self notwithstanding that the Church held it by way of reservation or saving and not by donation from the Parliament by any express Act yet was that saving with such limitations as that it received but a lame power in comparison of what it claimed and exercised in former times For whereas formerly the Church-men had the Writ De Excommunicato Capiendo at their own beck now it will not come but upon Articles and certain Conditions 1. In cases of Heresie 2. Of deserting of the Sacrament 3. Deserting of publick Worship 4. Maintenance of Error 5. Incontinency 6. Vsury 7. Simony 8. Perjury 9. Idolatry In other matters the Spiritual Sword must find or make their own way or else be quiet Secondly The Church was now no less under the Chair and Throne than under power of the Parliament nor is it a wonder if it could not thrive when it was so over◠dropped for Prelacie by the King's arms is lifted up so high above the other Clergie that the rest of the Clergie are as much underlings to the Prelacie as the Prelates are to the King. They dare not offend the Crown lest they should lose their Honours nor the inferiour Clergie them lest they should lose their Livings and Liberties and so the Prelates speak the sense of the Clergie and make the Crown their Oracle Thus in the Church-matters the Crown is all in all CHAP. XXXVII Of the Militia in these latter Times IT cannot be denied but as in the sober Government of this 〈◊〉 there is a Supremacy of Command so also in the rudest times of War and wheresoever the same is setled there must the Militia also be The word Militia is a general notion sufficient enough for a name or title but not to define the thing I take it for nothing else but the Government of the Commonwealth when it is in danger or War or in order thereunto It consisteth in the raising arming ordering and paying of the Souldiery The title of the Supream Power in all this work hath been of late put to the question and brought us to this sad condition of trial by Battle and by Fighting to find out who had the chief power to fight A Lesson that might have been learned from former Generations foregoing at a far cheaper rate when England is well in its wits Where the Law of Peace is setled there also is the Law of War and in what condition the Crown standeth in relation to the Legislative power in time of Peace may be seen in the foregoing Discourse In War the King is the peoples General by his place yet if any impediment do befal either by natural disabilities or civil to render the person incapable of managing of the Service there is no question but the people may order the matter as they please With examples hereof these times are full wherein we have a Child a Virgin and a Married Woman to sway the Work all of them in a very unmeet condition for such a Trust and yet by the help they had they managed it well enough The power of him as King or General in the Army is all one but before it is imbodied as a King onely he may do some things in order thereto according to the Law and Custom of the Nation yet this falls under a double consideration of the time and occasion In the recess of the Parliament he is the first mover and ought to move by the advice of his Council if occasion do provoke to Arms but if the same befal the Parliament then sitting no History or Record do mention that ever he moved but by their concurrent advice and direction The occasion either provoketh offensive or defensive War with other Nations or with the people of his own Nation in the case of Insurrection Examples of War with other Nations that may be called offensive Wars we have but two one in Edward the Sixth's time with Scotland and which was but in pursuance of a War begun by his Father and wherein the Kingdom stood ingaged in a case that concerned the publick good and safety viz. The Marriage of their King refused after promise made The other was in the time of Queen Mary with the French which somewhat reflected also upon the publick safety but more upon the dishonour of the same I◠none of these did either of the Supream Powers array or raise men by Prerogative but onely such as were Voluntier in that work And because the people were ill principled in Edward the Sixth's time in regard of the change of Religion he was induced to hire Foreign aid out of Germany The Wars in the time of Queen Elizabeth were in order to the defence of this Nation being ever under a malignant Aspect from abroad especially from Spain in Ireland France and the Low Countries Yet were these Wars served onely by Voluntiers nor did any Commission give power of impresting men to serve against their wills in any Expedition made to any of those places as the Commissions upon Record do testifie If any Levies of men were otherwise made or compulsory means used for such ends they are to be reckoned up amongst the errata whereof the Parliament took no notice in regard it saw the ends and issues of such Reflections in Government to be successful and honourable and that all was done by Council and a Woman popularly affected and therefore they less feared Invasion upon their Liberties Or otherwise they are to be imputed to the condition of those places being Members of the Commonwealth as the cautionary Towns in the Low Countries and the Irish Plantations were and so befel under another consideration of a defensive War in case of Invasion and common danger thereby or by Intestine broils during which condition as it is the King's duty to levy and array men so is it the duty of the people to be ready to assist one another in all such exigencies and to defend the publick Liberty Nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Council how far the same shall extend For never were general Arrays made where but one Coast was in danger and where no Conquest is in pretence but onely Piracy or Plunder But if the disease were general as in the year 88 the Array was general and yet it was of none but those that were of the Trained-bands besides such as were Voluntier Secondly The arming of these men was also diversly there was no general Rule or Law for the arming of men since the time of Edward the First to the time of Queen Mary but the Statute at Winton the course of Tenures I mean of such men as were of the Militia of this Kingdom So as when they were raised they were raised in their own Arms. But for such men as passed the Seas for Foreign Service as they were Voluntiers or sent over by the Parliament these were armed according to special contract
by Croisado to Jerusalem Anno 1189. And to give answer to Embassadors of a Foreign Prince pag. 25. And how King John shall conclude Peace with the Pope Anno 1213. Where nevertheless Matth. Paris saith was Turba multa nimis I say all these might well be done by a Council of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appear 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 having better opportunities for Knowledge and Learning especially joyned with the Clergie than the Commons in those times of deep darkness wherein even the Clergie 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 Archbishop and Ethelstan concerning Land instanced Anno 1070. And between Lanfrank and Odo Anno 1071. And between the King and Anselme pag. 15 16. And the determining of the Treason of John afterwards King against his Lord 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 appear and therefore can these form 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 work whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because he findeth many things by them concluded touching the solemnization and the setling 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 work 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 pag. 16 will fail or the Opponents Principles who will have no Parliament without a King. The like may also be said of the instance concerning King Steven pag. 18. Much less can the Solemnization of the Election by Coronation be a proper work for the Parliament Nevertheless the Opponent doth well know that both the Election of a King and the Solemnization of such Election by Coronation are Spiritless motions without the presence of the people and therefore though his instance pag. 17 concerning the Election of Henry the First by the Bishops and Princes may seem to be restrictive as to them yet it is not such in fact if Matthew Paris may be believed 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 Ecclesiastical and making of Canons and hereof enough hath been already said that such Work was absolutely challenged by the Church-motes as their proper Work and therefore the Instance pag. 16 17. of the Council in Henry the First 's time and the Canons made by the Bishops there and that other called by Theobald Archbishop of Canterbury and instanced by the Opponent pag. 19. I say both these do fail in the Conclusion propounded Fifthly as touching the most proper Work of Parliament which is the making of Laws concerning the Liberties and Benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to the Proposal for as touching those two instances in his Thirteenth page Anno 1060 they concern not the making of Laws but the reviving of such as had been disused formerly which might well enough be done by a private Council But as to that in his Fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincoln although it be true that we find not the particular Titles of Knights Citizens and Burgesses â—yet besides the Council of Archbishops Bishops and Princes we find the Common Council for so the words are Communi Concilio Concilio Archiepiscoporum Episcoporum Abatum omnium Principum although the Opponent would seem to wave these words Et Concilio by putting them in a small Character and the rest in Great Letters that the Readers eyes might be silled with them and overlook the other Secondly As to the instance of the Council at Clarindon in his Nineteenth page which he citeth out of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the several ranks of Great Men and those in black Letters of a greater size and saith That not one Commoner appears yet Mr. Selden's Hoveden in that very place so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Laws made by Richard the First in his Twenty fourth page and he setteth down the several Ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Gloss of his own that they were Barons that were made Knights whenas formerly Barons were mentioned in the general and therefore how proper this Gloss is let others judge especially seeing that not onely Milites and Milites Gregarii but even Ministri were present in such Conventions even in the Saxon times And Mr. Selden in the former known place mentioneth an Observation that Vniversi personae qui de Rege tenent in Capite sicut caeteri Barones debent interesse judiciis curiae Domini Regis cum Baronibus Fourthly He citeth in his Twenty fifth page another instance in King John's time in which after the assent of Earls and Barons the words Et omnium fidelium nostrorum are also annexed but with this conceit of the Oponents that these Fideles were those that adhered to the King against his Enemies be it so for then the Commons were present and did assent or they may be saith he some specially summoned as Assistants take that also and then all the true-hearted in the Kingdom were specially summoned and were there so as the conclusion will be the same In the fifth place he cited a strange Precedent as he calls it of a Writ of Summons in King John's time in his Twenty seventh page wherein Omnes Milites were summoned Cum armis suis and he concludes therefore the same was a Council of War. First Because they were to come armed It is very
are ready to give and pay to him and to every Christian continually Besides we are under the government of the Bishop of Caerleon upon Uske who is to oversee under God over us and cause us to keep the way spiritual This was the Britons resolution and they were as good as their word for they maintained the liberty of their Church five hundred years after this time and were the last of all the Churches of Europe that gave their power to the Roman beast and Henry the Eighth that came of that blood by Teuther the first that took away that power again Austin having met with this affront and perceiving that the Britons were stronger in their Faith than he by his Miracles cast about to try the Saxons courtesie that what the Ephod could not the Sword wrapt up therein should I say not that he procured but he threatned or prophesied the destruction of the Monks of Bangor and it came to pass and the accasion by writers loudly suspected Nevertheless the Saxons were not so zealous of their new Religion as to make a new National quarrel between the Britons and themselves but left the game to be played out by Austin who finding by experience that it would not prove the work of one man left it to successors to work out by degrees in efflux of time And thus Austin neither good Servant to the Servant of Servants nor good Monk retires to settle his Saxon province and to present or rather to prostitute it to the lusts of that red Whore which was the general piety of those ignorant times CHAP. VI. Of the Imbodying of Prelacy into the Government of this Kingdom I Cannot think that the platform of the mystery of iniquity when boiled to the height was ever fore-seen or in the aim of the wicked spirits on Earth or those in Hell. Yet were they all instruments of this monstrous birth filled with subtilty and mischief guided principally by occasion and over-ruled by the Justice and Wisdom of God to make a yoke for Monarchs and a scourge to the world for their refusal of the government of Christ until this Monster came to perfection and wherein themselves were feloes de se and wrought their own mischief For Austin coming in as a third Proprietor with King and People and having gathered the materials of a Church reason told them that a form of government must be setled in that Church The Saxons had no principles of their own for they had no learning and to go to the Britons for a pattern might be ignoble and where the choice is small it is soon made Rome held now the most part of the Churches of Europe at School the Saxons soon resolve Rome that had been their Mother shall be also their Father And thus at one draught they drank up a Potion of the whole Hierarchy of Rome from the Pope to the Apparator with a quicquid imponitur imponetur which was of such lasting efficacy that it ceaseth not to work even to this day although it was slow in the first operation For the Saxons had a Common-wealth founded in the liberty of the people and it was a masterpiece for Austin and the Clergy so to work as to remain members of this Common-wealth and yet retain their hearts for Rome which was now grown almost to the pitch of that Antichrist For reason must needs tell them that the Saxon principles would not suffer them to be ad omnia for Rome nor the Roman Canon allow them to be wholly Saxon and they faw plainly that the times were too tender to endure them to be declarative on either part and therefore they chose a third way which was to preserve the municipal Laws in moderation towards the Canon and to that end to endeavour such a temper upon the State as must admit them to be in repute such as without whom the Common-wealth could not well subsist no more than a body without a soul and that few occasions should befal but at least in ordine remoto must reflect upon both and then all reason will bespeak them to joyn in the legislative power and government of this Kingdom but especially as Bishops who are now Magnae spes altera Romae and the very top-flowers of wisdom and learning And unto this temper the Saxons were sufficiently prepared and inclinable for it was no new thing for them to admit their Heathenish Priests into their general meetings and allow them much power therein and then it is but the person changed and they must do as much for their Bishops now they are become Christian especially themselves being all for the field and overgrown with a general ignorance the common disease of those times Kings were in no better condition it was hard for them to be Baptized and not to be Baptized into Rome and commonly under such a Covenant as though many might repent of yet none durst amend For whenas the Pope is Lord of the Consciences of the people the Kings power may sometimes out-face but can never govern the Saxon Kings were therefore fain to make a vertue of necessity and advance Bishops to be common favorites both of Rome and themselves to maintain good correspondency between both Swords and to countenance the power of the temporal Magistrate in cases of dispute else he oftentimes might command and yet go without Thus entred the Prelates upon affairs of Kings and Kingdoms and became lovers of Lordships and troublers of States and if in any thing they served their Country they served Rome much more their merchandise was made of the policies and Counsels of all Kingdoms and States and such returns proceeded as were still subservient to the Roman interest and they intoxicated the domestick counsels in such manner as they generally staggered and many times came short of home Nevertheless at the first this was but rare clancular and covered with much modesty for excepting such choice spirits as Austin had Roman Prelacy in these younger times was but Velvet-headed and endured not much greatness or big titles but spake like a Lamb Ego non verbis quaero prosperari sed moribus said this Gregory to the Alexandrian Bishop who had put upon him the title of Universal Bishop or Pope and whereas he had in a way of Courtship called Gregories Counsels commands he startles at it quod verbum jussionis saith he peto a meo auditu removeri quia scio quis sum qui estis Thus Prelacy first conveyed it self into opinion afterwards into conscience and ambition coming in the rear made it become both Bishop and Lord. CHAP. VII Of Metropolitans in the Saxons time BEing in pursuit of the Government of this Kingdom in elder times and therein first of the persons with their relation then of their work and lastly of their Courts and Laws and now in hand with the Ecclesiastical persons I shall descend to their particular ranks or degrees and shall shew what
also the Civil Magistrate the cognizance in point of Right albeit future times introduced a change herein CHAP. XV. A brief Censure of the Saxon Prelatical Church-Government THis that I have said might at the first view seem to represent a curious Structure of Church-policie which might have put a period to time it self but to speak sine ira studio the height was too great considering the foundation and therefore ever weak and in need of props The foundation was neither on the Rock nor on good ground but by a Ginn screwed to the Roman Consistory or like a Castle in the Air hanging upon a pin of Favour of Kings and great men At the first they thought best to temporize and to hold both these their strings to their Bow but feeling themselves somewhat under-propped by the Consciences of the ignorant people they soon grew wondrous brave even to the jealousie of Princes which also was known so notoriously that the publick Synods rang That the Prelates loved not Princes but emulated them and envied their greatness and pursued them with detraction And if the Cloth may be judged by the List that one example of Wilfrid Archbishop of York will speak much He was once so humble minded as he would always go on foot to preach the Word but by that time he was warm in his Archbishops Robes he was served in Vessels of Gold and Silver and with Troops of Followers in such Gallantry as his Pomp was envied of the Queen A strange growth of Prelacy in so small a space as Eighty years and in the midst of stormy times such as then afflicted this poor Country But this is not all for never doth Pride lead the way but some other base Vice follows I will not mention the lives of the Monks Nuns and other Clerks Malmsbury speaks sufficiently of their Luxury Drunkenness Quarrelling and Fighting Others witness thereto and tell us that the Clergie seldom read the Scripture and did never preach and were so grosly ignorant that Alfred the King being a diligent Translator of Latine Writers into the Saxon Tongue rendreth this reason Because they would be very useful to some of his Bishops that understood not the Latine Tongue Nor were the Presbyters of another dye for that King bewailing their ignorance in his Letter to Wolfegus saith That those which were de gradu spirituali were come to that condition that few of them on this side Humber could understand their Common prayers or translate them into Saxon and so few as I do not saith he remember one on this side the Thames when I began to reign And the Synod that should have salved all covers the Sore with this Canonical Plaister that those of the Clergie that could not say Domine miserere in Latine should instead thereof say Lord have mercy upon us in English. It was therefore a vain thing for the Clergie to rest upon their Works or Title of Divine Right their great Pomp sacred Places and savour of Kings commended them to the Administration or rather Adoration of ignorant people and the favour of the Roman Chair unto the regard of Kings who maintained their interest with the Conclave on the one side and with the People on the other side by their means and so they mutually served one another It cannot be denied but the Pope and Kings were good Cards in those days yet had the Prelacie maturely considered the nature of the Saxon Government so much depending upon the people they might have laid a more sure foundation and attained their ends with much more ease and honour I commend not the base way of Popularity by principles of Flattery but that honourable service of Truth and Vertue which sets up a Throne in the minds of the Vulgar few of whom but have some sparks of Nature left unquenched for though Respect may chance to meet with Greatness yet Reverence is the proper Debt to Goodness without which we look at great men as Comets whose influence works mischief and whose light serves rather to be gazed upon than for direction The foundation thus happily laid the progress of the building was no less irregular in regard of their ends that they aimed at For first they admitted the Laity into their Synods who were not so dull but could espie their ambition nor so base spirited as to live in slavery after conviction This Errour was espied I confess but it was too late and though they reformed it yet it was after Four hundred years labour And in the mean time by the contentions of the Clergie amongst themselves Kings had first learned so much of their Supremacy and the Laity so much of their Liberty as they began to plead with the Clergie and had brought the matter to issue before the Synod could rid themselves of these Lay-Spectators or rather Overseers of their ways and actions A second Errour was the yoking of the Bishops power under that of the Synods for they had little or no power by the Canon that was not under their controul neither in admission or deprivation of Presbyters or others determining of any Cause nor passing sentence of Excommunication And this could not but much hinder the hasty growth of Antichrist's power in this Kingdom Nor could it ever be compleated so long as the Synods had the chief power Nevertheless the inthralled spirits of the Clergie and terrour of the Papal thunder-bolt in continuance of time surmounted this difficulty and Synods became so tame and easily led as if there had been but one Devil to rule amongst them all For if any quick eye or active spirit did but begin to peep or stir the Legate e latere soon reduced him into rank and kept all in awe with a Sub poena of unknown danger A third error was the allowing of peculiars and exemptions of Religious Houses from ordinary jurisdiction and this was an error in the first concoction a block in the way of Prelacy and a clog to keep it down This error was soon felt and was occasion of much mutiny in the body Ecclesiastical but exceeding profitable for Rome not only in point of Revenue by the multitude of Appeals but especially in maintaining a party for the Roman See in case the Prelacy of England should stumble at the Supremacy of Rome Otherwise it seemed like a Wen upon the body rather than any Homogene Member and without which certainly the English Prelacy had thriven much better and the Roman Chair much worse In all which regards I must conclude that the Prelatical Government in England was as yet like a young Bear not fully licked but left to be made compleat by time and observation CHAP. XVI Of the Saxons Common-wealth and the Government thereof and first of the King. HAving already treated of the Saxon Church in order I am now come to the Republick which in all probability will be expected to be suitable to their original in Germany whereunto having
the Kings hand against the Subjects a snare to the Kingdom and had not the Wittagenmote in their meeting allayed those distempers the Saxon-government had been little other than a Commonwealth reversed CHAP. XXII Of the manner of the Saxons Government in time of War. AS the condition of States or Kingdoms are diversly considered in War and Peace so also must their Government be For however War in it self be but a feaverish Distemper in a Commonwealth 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 than from the abundance of humours Nor did the temper of the Saxon Commonwealth ever shine more than in War while it set a Law upon that which ordinarily is master of all mis-rule and confusion and so fought by rule rather than by passion Their Chief in the first times was chosen by the Freemen in the Field either at the Wittagenmote or the Folkmote according to the extent of his command being carried upon a Shield born upon their shoulders like as now Knights of the Shire are This Emblem they entertained him with to declare their trust in him and the work that was expected from him His first title was Heretock afterwards he was called Duke or Dux the latter whereof turned to a bare Title in the conclusion but the former maintained its own 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 trick of imbased times for though the Lacedemonian Law was positive that none should flie or break his Rank but get the Victory or die yet were they neither bound by Oath or Penalty shame in those times being accounted worse than death by those brave minds But times growing more old grew also more base-spirited and men could not be drawn into the field holden in Rank by Oaths or Honour and this occasioned that Law of Ina the Saxon King that in such case a Country-Gentleman should be fined One hundred and twenty shillings if he were landed but if otherwise Sixty shillings and the Yeoman Thirty shillings and afterwards the penalty was increased to the forfeiture of all the estate of the Delinquent In their Wars they went forth by bodies collectively as they were united by the law of pledges this made them stick close together for the honour of their Families and Friends and rendered their encounters mortal and to the worsted party commonly fatal 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 Villains to follow them in the Battle but the strength consisted of the Freemen 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 peril of Fine and were bound to keep Arms for the preservation of the Kingdom their Lords and their own persons and these they might neither pawn nor sell but leave them to descend to their Heirs and in default of them to their Lord and in default of him to their chief pledge and for want of such to the King. They mustered their Arms once every year both in Towns and Hundreds viz. the morrow after Candlemas and such whose bodies were unfit for service were to find sufficient men for service in their stead They were strict in their Discipline if they followed their rule which was made not by the arbitry of the General but by Parliament These amongst other scattered principles concerning Sea-affairs may serve to let us know that the Law-martial and that of the Sea were branches of the positive Laws of the Kingdom setled by the general Vote in the Wittagenmote and not left to the will of a lawless General or Commander so tender and uniform were those times both in their Laws and Liberties CHAP. XXIII Of the Government of the Saxon Kingdom in times of peace and first of the division of the Kingdom into Shires and their Officers IF the Saxon Government was regular in time of War 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 several Circuits or Circles and to assign to each their several Magistrates all of them ruled by one Law like one soul working in several Members to one common good Thus they did here in England having found the Land already divided into several 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 publick 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 folk East or South Sex or Saxons This division by the names seems to be of Saxon original and though by the testimony of Ingulfus and other Writers it might seem to be done by Alfred yet it will appear to be more ancient if the Reader mind the grant of Peter-pence made by King Offa wherein is recorded the several Diocesses and Shires out of which that grant was made under the very same names that they own at this day and that was more ancient than Alfreds time by the space of eighty years Each of these Shires or Counties had their two chief Governours for distributive justice of these the Sheriff was more ancient and worthy Officer being the Lieutenant and aided by the power of the County in certain cases for his Commission extended not to leavy War but to maintain Justice in that County and within the same and in this work he was partly ministerial and partly judicial in the one he was the Kings Servant to execute his Writs in the other he regulated the Courts of Justice under his Survey He was chosen in the County-Court called the Folkmote by the Votes of the Freeholders and as the King himself and the Heretock were intituled to their honour by the peoples favour The Coroner though in original later was nevertheless very ancient he was the more Servant or Officer to the King of the two His work was to enquire upon view of Manslaughter and by Indictment of all Felonies as done contra Coronam which formerly were only contra Pacem and triable only by appeal And also he was to enquire of all Escheats and Forfeitures and them to seize He was also to receive appeals of Felonies and to keep the rolls of the Crown-pleas within the County It 's evident he was an Officer in Alfreds time for that King put a Judge to death for
Author reciting another example of his justice against another of his Justices 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 only tending thereto and limited within a Precinct but not annexed thereto and these are matters of profit rather than power as those of Bury St. Edmonds Doncaster Dorchester Circester all which were in the Saxon times and these or some of them had juridical 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 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 Backhearend Then was he carried immediately before the Coroner of that Liberty and the Sakeber or party wronged made his proof by Witnesses and thereupon judgement forthwith passed without answer and execution immediately ensued Some Liberties had Outfangtheoff that is the trial and forfeiture of such Delinquents being no Inhabitants and yet taken within the Liberty or Inhabitants and not taken within the Liberties but this Trial was always by Jury The Antiquity of these Liberties are not obscurely manifested in their names and more clearly by the Saxon Laws and Acts for it 's observed of Alfred that he seized 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 Goale of the County as he ought to have done Other Liberties there were granted also by Charter a tast 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 particular natures of each may be observed in the Glossaries all of them being allowed to the Crown by the Law and by the advice of the Council of Lords granted over to these Grantees in nature of Deputies to the King to possess both the power and profit thereto belonging CHAP. XXXI Of Manors NEvertheless most of these Liberties if not all of them were many times granted by Kings as appendant to Manors which were Francheses of smaller circuit being at the first portions of ground granted to some particular persons and by them subdivided and granted over to particular persons to hold of the Grantors by Rents Services and suit to one Court all being no other than the spoils of War and rewards of valour or other service These in their collective nature are called a Manor and by continuance of time become a kind of body politick In Antiquity it is called Mansum from the Mansion-house although it is not of the Essence of a Manor nor ought the words of Bracton to be construed according to the literal sense for the house may be destroyed and yet the Manor continue and the ground was granted in tenure before any house built thereupon The quantity of the ground thus given to hold by Service was according to the pleasure of the Lord more or less and therefore might extend into divers Parishes as on the other part one Town might comprehend divers Manors The Estate that was granted depended partly on the condition of the Grantee for some were servi or Bond-men and their Estate was altogether at the will of the Lord as was also the benefit but the servants merit and the Lords benignity concurring with some Conscience of Religion as the light grew more clear abated the rigour of the tenure into that which we now call Copy-hold Other Estates were made to the Free men which in the first times were only for years albeit therein they were not niggardly for they sticked not at Leases for a hundred years yet with a render of Rent which in those days was of Corn or other Victual and thence the Leases so made were called Feormes or Farmes which word signifieth Victuals But times ensuing turned the Victual into Money and terms of years to terms of lite and inheritance retaining the Rents and those called Quit-rents or the Rents of those persons that are acquitted or free But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a relief which were not left to the will of the Lord but was put in certainty in the very letter of the Law for according to each mans degree such was his Relief or Heriot But over and above all they reserved special service to be done by the person of the Tenant or some other by his procurement of which those that were their servi or villains were at the will of the Lord others had their particular service set down in their grants These concerned either War or Peace the former was afterwards called the service of the Knight or Souldier the latter the service of the Husbandman or Plough That of the Souldier was the more honourable and suitable to the old German trade Pigrum iners videtur sudore acquirere quod possis sanguine parare and the work was to defend the Kingdom the Lords person and Honour and to this end he was ever to have his weapons in readiness which gave name to the service and altered as times and customs changed This service by custom from a work degenerated into the bare Title and became a dignity and the men named or rather intituled Milites and many of the Saxon Charters were attested by men bearing that Title yet the service itself was far more ancient and called servicium loricae of which sort also were the Custodes pagani that wore a Helmet a coat of Mail and a guilt Sword not unlike the old German way of calling forth of their Tirones to the war. Of this rank some were more eminent than others for some bare the single title of Knight and it seemed served on foot others served on horseback and were called Rad knights or Knights-riders as Bracton noteth and these I take to be the Vavasours noted in the Conquerours Laws for that their relief is a Helmet a Coat of Mail a Shield a Sphear and a horse Now for the maintaining of this service they had Lands and Tenements called Knights-Fees which bound the owner to that service into whose hands soever they came to be done either by the person of the owner or other fit person by him procured and therefore were discharged from the payment of all Taxes and Tollage which was the Law of the Goths of old and remains in Sweden at this day
Walls and Castles and for the former by setling a Magistracy peculiar to that place or Township not as so many Decenners but as one body consisting of many members And thus by custom they grew to be Fraternities or Corporations under one Magistrate or Head whom they called Alderman and held a Court of Justice at the first holden twice a year which was in nature of a Leet with a view of Frank-pledge as may appear in the cases of Dorchester Circester and Doncaster in Alfred's time and herewith they had publick Markets which served them for their better conveniencies This priviledge of Market was a liberty of publick sale and trade in Commodities that principally concern the Belly but by common course became a pass for Commodities of every kind almost Concerning this liberty I shall desire leave to interpose this Parenthesis ensuing before I proceed in the intended discourse In the first times as every man by common right had property in his own Goods so by the same right he had power to alien to any person at any time in any place by gift sale exchange or other ways and that by such Alienation but especially by sale a Right was vested in the Buyer against all men saving the Eigne-right which was recompenced upon warranty and recovery in value And in those days common sense taught men to buy or sell of or to the next Neighbour that would bargain with them and for want of such occasion to repair to the next Assembly Meeting or Concourse of people for the sale of such Commodities as their Neighbourhood would not take off their hands And thus the greater Towns that had Walls or Castles became the greatest Markets and others less and this made the Neighbourhood of those Towns to repair thither to buy as others to sell. But time discovering a double inconveniency herein viz. that by these less publick sales in smaller Villages where little or no care of Right or Justice was had and by which means the word Pagan became a word of reproach many mens Goods by clandestine Contracts were lost and no care had of their recovery and which was yet more prejudicial to the Publick that the greater Towns appointed for the strength and defence of the Kingdom became ill provided with supply of Victuals either for the present or future and what was had for the most part was gotten at the second hand and higher rate than the Country-Villages had The wise men by publick Edict laid a restraint of Markets in smaller Villages and more private places and thus the greater Towns having Markets formerly became more publick Markets not by any new Right or Priviledge from the Crown for it neither had such power nor could have but upon usurpation against the common Right of such Towns and places of publick defence This Restraint upon the reasons aforesaid was made first in the Saxon-times as may appear by their Laws but more cleerly declared and confirmed afterwards by the Laws of the Normans which never gave any new Right of Market-overt unto those places of publick defence but onely did inhibit the same in the smaller Villages and private places In which respect although the Kings of this Nation in future times took leave to abolish that Restraint which did lie upon some of those more private places for certain reasons of State and so these places became Markets-overt which formerly were none yet could they never take away that priviledge which Nature it self cast upon those greater Towns being the very Limbs of the Kingdom without wrong done to the common Right and the publick Good nor abridge them of that power but that they might still use their liberty at times and places within their Precinct as might best conduce with the benefit of the Inhabitants of those places even as any particular Free man may govern his own Estate as him liketh best And thus upon the whole matter it is to be concluded that the ancient Burroughs of this Kingdom properly do not hold their liberty of Market-overt by Prescription or Charter but by common Right and not as a Corporation made by Charter but as they are a multitude of people anciently gathered together and united upon whom the strength and wealth of the Kingdom doth or did formerly much more depend than on any of the smaller Villages and open Towns even as every Free man possesseth and useth his proper Inheritance and Estate without particular priviledge derived from the Crown Nor can the King take away the liberty of Market-overt from such places more than he can take away the liberty of buying and selling from any Free man to whom the Law alloweth a liberty of ownership This I submit to the censure of the learned in the Laws in regard of the different opinions concerning the same This liberty of Township thus made and the Place and People Inhabitants thereof being of such consequence in the publick administration had for their better support and safety liberty of Fortification and power to charge one another with the maintenance of the Fortifications by an imposition called Burghbote and held their Tenements under a Rent to their Lord or King called Burgage as they were a body aggregate CHAP. XXXIV Of the Forests BEsides other Prerogatives of the Saxon Kings they had also a Franchise for wild Beasts for the Chase which we commonly call Forest being a precinct of ground neither parcel of the County nor the Diocess nor of the Kingdom but rather appendant thereunto This savoured of the old German sport but by custom turned from sport to earnest For although in the first times the Saxons were so few and the Country so spacious that they might allow the Beasts their Farm as well as themselves their own People nevertheless so multiplied as of necessity they must intercommon either with Beasts or Fishes the former whereof however more cleanly yet the latter had the surest footing and was chosen as the least of two evils rather than for any likelihood of good Neighbourhood For as Nature taught Beasts to prey for themselves so men to defend their own and this bred such a fewd between Beasts and men as that Kings doubting to lose their Game took in with the weaker that the world might see the happiness of England where Beasts enjoy their liberty as well as men But this was as it were by compromise for it had been very hard to have pleased the Free men who had liberty of Game within their own ground by common Right and to preserve the Kings liberty of Forest co-incident therewith had not the King employed on the one side the power of a Dane that looked somewhat like a Conquerour and on the other side that which looked as like to the bounty of a King in allowing liberty of ownership to men inhabiting within the bounds of the Forest which at the first was set apart onely for the Kings pleasure and all his wits to
sworn that he would not sell Right or any remedial Writ to any one yet upon the day of c. he sold to B. a Writ of Attaint and would not grant the same under half a Mark. So as the difference between an Indictment and Presentment in those days was onely in the degree of the Crime for which the party Delinquent was accused and in the manner of conclusion of the Presentment which was without Averment The last way of Trials concerns such offences that exceed not the nature of Trespass done to a mans Person or his Goods and this was by way of Action and it was to obtain recompence for Damage sustained Now because the former were called Personal Trespasses the Process was by attachment of the Person who thereupon put in Bail or else his Person was secured by imprisonment till Trial and satisfaction made But in the later that concerned the reality Three Summons went forth in the Hundred-Court and if default were made complaint thereof ensued in the County-Court and thence issued forth a Distringas and if the Defendant still persisted in declining his appearance the Distress was forfeited and a Summons issued upon the Land. If then the Defendant would not appear or upon appearance would not give Pledges to abide Judgement his whole Land was seized for the benefit of the King of the Lord of the Hundred and of the Complainant because he had offended against all three But if the party appeared in former times he answered forthwith and Judgement passed without delay as hath been said unless in urgent cases where the matter was raw and then it was adjourned and Pledges given by the Defendant to the full value after the custom of the Athenians and if the Defendant made Default at the day his Pledges were forfeited But in after-times for better and more advised proceeding the Defendant was admitted to his Essoines yet with a Proviso that no Essoine should be allowed for above Fifteen days and this was the direction of King Alfred In the answer of the Defendant he either traversed the matter in fact or confessed and justified or confessed and submitted The first put the matter to the judgement of the Freemen the second to the judgement of the Judge the third to the discretion of the Complainant whereby the Defendant generally found mercy and in case of Trespass rendred less damage I find no footsteps in those times of Dilatorypleas or Demurrer or other delays unless in case of infancy for the Saxons knew no other age of ability to do or suffer but the age above One and twenty years and in Alfred's time a Judge suffered death for passing Sentence of death upon one under that age Albeit the Canonists had in those days brought into custom other ages of ability in matters concerning Marriage although it may well be thought that it requireth no less maturity to manage the affairs of a married life than to discern the nature and difference of manners especially in case of crimes which are contrary to the very light of nature CHAP. XXXVII Of the several manners of extraordinary trial by Torture Ordeale Compurgators and Battle EVidence of the matter in fact upon trial of Causes in the Saxon Judicatory sometimes consisted in the pregnant testimony of the Fact it self and sometimes in the testimony of some Circumstances The first was an unquestionable ground of conviction the second was too weak to command the Verdict although sometimes it perswaded it and therefore those incompassionate times found out a trick of extorted confession by torture of the party following the principles of passion therein rather than sober judgement for circumstances are sufficient to irritate the hearts of those that are passionate and where Jealousie is once entred there 's no place for sparing be the matter never so untrue Yet I do not find any Law amongst the Saxons to patronize this fashion of conviction albeit it seemeth it was practised for Alfred the King punished one of his Judges with death for passing Sentence upon an extorted confession by Torture before the Corner And possibly it might be gained from the Lacedemonians although little to the praise of their Greekish wisdom in that particular Seeing that in all reason it must be supposed that Fear and Grief will enforce Flattery upon the Tormentor as well as Self-love draw forth Flattery to the Benefactor A second sort of Evidence was that of Ordeale being also grounded upon a pre-conceit or suspicion the manner hereof was divers The thing seemeth to be the birth of the Brain of some Church-man who had read of the cursed Water The first mention that I find thereof was at the Council of Mentz and afterwards in the Council of Triers but not a footstep thereof in this Kingdom till by Aethelstan it was advanced into the degree of a Law after which time it continued in use well nigh Three hundred years A strange monument of God's idulgency to an ignorant Age thus turning extraordinary to ordinary for the clearing of innocency and which is no less wonderful allowing in those times unto men under nature such a power over themselves as to adventure against nature Doubtless that man or woman was of a daring spirit that first tried the trick if he had not a miraculous faith in that promise Cum ambulaveris per ignem c. and it shewed metal in them that followed the example But the next age grew dull and men being weary of such bane-touches the Clergy that cried it up their successours cried it down and so devoured their own birth without any difficulty other than a bare injunction of a King that had power to command onely such as would obey But where fame was yet more slight and springing rather from want of charity and misapprehension than promising circumstances men were wont to be contented with a voier Dire or the Oath of the party suspected and the concurrent testimony of other men The first attesting his own innocency the other contesting their Consciences of the truth of the former testimony and therefore were and still are called Compurgators Their number was more or less and of greater or less value according as the offence or the party suspected was of greater or less concernment This manner of trial was of ancient use and both it and that Ordeale under the directory of the Clergie yet this was the ancienter by Three hundred years and first brought into this Nation by the Council at Berghamsted under Bertwald Archibishop of Canterbury And it was performed sometimes more solemnly by solemn receiving of the Eucharist especially if the person suspected was of the sacred Function One manner of trial yet remains which was used both in trial of matters of Crime and Title and it is the trial by Battle which was in criminal matters with sharp Weapons but in titulary matters with blunt
Land as without they would be faithful to their Lord King William and in every place to keep with all fidelity his Lands and Honours together with him and against Enemies and Strangers to defend It is the self-same in substance with the fealty that the Saxons made to their Kings as will appear by the parallelling them both together The Saxons were sworn to defend the Kingdom against Strangers and Enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulness so as by the Saxon way the Allegiance first terminated on the Kingdom and then as in order thereunto upon the King with his Lands and Honours But the Norman either wholly omitted the first as needless to be inserted in a municipal Law it self 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 Kingdom and so made up the sum of the Saxon fealty in fewer figures Which may seem the more probable of the twain because little reason can be rendred why the King should restrain that defence to his private Lands if he claimed all by Conquest whenas all equally concerned him or why he should exclude the publick whenas both himself and all he had was embarqued 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 King's purpose if the file of his purposes be rightly considered For speaking concerning Castles Burroughs and Cities which are in nature limbs of the Common-wealth he saith that they were built for the defence of the people and Kingdom Was this the service of Walls and Fortifications and not much rather of men within those places of strength Certainly the plain English is that in time of breach of publick quiet and peace the Subjects were bound to defend the Kingdom and in order thereto the people of the same and of the King 's right included in the publick defence else it were a strange conclusion that each man in particular and in their own personalone was bound to defend the King 's right but being imbodied the Kingdom And yet more clearly it 's apparent in that the service of the order of Knight-hood which was the chief strength of the Nation in those days was determined upon the service of the King and defence of the Kingdom or which is more plain for the service of the King in or for defence of the Kingdom as the Statute of Mortmain expounds the same But not to force the King's sence by argument if the King had purposely omitted that clause of the Kingdoms safety as of inferiour regard to his own personal interest it was one of his rashest digressions wherein he soon espied his errour for in the midst of his strong and conquering Army he held himself unassured unless he had a better foundation than 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 1. To defend the Kingdom with their lives and fortunes against all enemies to the utmost of their power 2. To keep the peace and dignities of the Crown 3. To maintain right and justice by all means without deceit and delay Joyn then these two Oaths together viz. that of fealty and this of fraternity and it will easily appear that the Allegiance of the English to the Norman Kings was no other than what might stand with Brotherhood and tender regard of the publick above all and differing from the Saxon fealty onâ—y in this that that was in one Oath and this in two Wherefore whatsoever respects steered in the rear of the King's course it is less material so long as the van was right albeit that the sequel will prove not much different from the premises as will appear in the foot of the whole account Thus entred the first Norman upon the Saxon Throne and as he had some colour of right to countenance his course so had his Son 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 dye and therefore might well be called William Rufus or William in grain He was exceeding happy in the fear 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 pass 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 maintain The Clergy first led the way having first taken a recognizance of him for his good behaviour towards them which he assured as far as large promises and protestations would serve the turn and within one year after standing in need of the favour of the Commons to maintain 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 lieve 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 falls 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 and the liking of the Clergy after they had found by experience the emptiness 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 only that God would so have it It is true the English stuck close to him but how they were gained or contained Writers speak not but tell us of his promises which also they tell us were vain and never had issue further than would stand with his profit Exit William Rufus and in comes his younger Brother Henry the first of that name a Prince that excelled in wisdom and by it ruled his courage which served him so far as his aims and ends reached his Title was no better than 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 War of Jerusalem might merit that respect of the Clergy as not to permit him to
set this consideration aside as not co-incident at all with the Norman engagements after they were crowned and to take all the subsequent Wars to be meerly defensive of the right of the Crown as in sober construction they will appear to be as touching the levying of money 't is evident that it lay onely in the power of the grand Council of the Kingdom for otherwise the Laws were setled that no Tax should be made or taken but such as were due in the Confessor's time as formerly hath been shewed Secondly for the preparing of men and munition it was done either by Tenure or by special Law. As touching Tenure it was provided by way of contract that those that held by Knight-service should be ready with their Arms to assist the King for the defence of the Realm So as they were not bound by their Tenure to aid him in any other cases Others were also by especial Law of the Land bound to be ready for their service in that kind For all the Inhabitants of this Kingdom held their Estates under a general service which by common right they are bound to perform viz. in time of danger to joyn in defence of their Country This is the common Fealty or Allegiance which all men owe and which if neglected or refused renders the party guilty of Treason against his Country and his Estate under the penalty of forfeiture according to the old Saxon Law revived and declared by Henry the first Thus the Law made preparation for the War both of Men and Arms. Castles and Forts were likewise either first made by the order of the grand Council or otherwise allowed by them for the defence of the Commons and the Kingdom so was the Law of William the first The levying and managing of the War must not be denied de jure to belong to the representative body so far as may consist with the directory part for that it is a main part of the Government of the Kingdom in times of War And therefore Henry the first amongst his Laws made in the ordinary course of Law-making provideth for the ordering of men in the Army in the field and established a Law that such as forsook their Colours or Associates in the field during the Battle should be punished with death and forfeiture of his whole Estate Nor yet can it be denied but that de facto Kings of their own accord and by secret Council did direct therein either in the vacancy of Parliament which was the general case of the first times of the Norman Conquerour and the whole Reign of William Rufus or by connivance of the grand Council while they saw nothing done but what was well done Nor can it be rationally said that Kings by such advice as they have in the recess of the grand Council levying War in defence of the publick according to rules do otherwise than their duty or if the grand Council look on see nothing misgoverned and say nothing that they do other than is meet For it must be remembred that Kings in their first original were rather Officers for War than Peace and so are holden by all Antiquity and as Generals in War were called Reges or Imperatores by the Grecians Romans and Germans And at such times as War was concluded at the general meeting of the people they chose their Dux or Rex call him which you please and he being chosen all bound themselves to be at his command and to defend his person So as while a King keepeth within his place in time of danger it is his duty first to stir himself and stir up the rest to lead them and order them as may be most for the publick defence and to govern the Army by such Laws as are or shall be established by order of the publick Meeting and in case of sudden exigencies to use his own wits and in all this is the common liberty no whit infringed in regard that all is for the publick defence to which the Knights are bound by their Tenures and all others by the Law. And this was this Kingdoms case in the Normans time that both Leaders and Souldiers whether by election of the people or prescription yet all served for the defence of the Kingdom Nor were they compellable to any other service inconsistent therewith nor to stand to any judgement in such cases differing from or contrary to that of the Parliament it self CHAP. LV. That the entry of the Normans into this Island could not be by Conquest THat in point of fact the entry of the Normans into England was not by Conquest will sufficiently appear from what hath been already noted I shall make one step further and shew that as affairs then stood with the Conquerour it was impossible for him to merit that name against the stream of Providence that had pre-engaged him to three sorts of men viz. the Normans the Clergie and the Commons of England It must be taken for a ground that Duke William must give all fair correspondency to the Normans considering they are Members of his own Body and the Arm of his Strength without which he could do nothing And it is not less certain that however the Sea divided the two Countries yet long before the arrival of the Army the Normans and Saxons were so well acquainted by the latter access of the Danes that partly by marriage and other interests the Normans made so great a party in England as that party merited no less from the Duke in his entrance than those he brought with him And therefore both they and their Allies in all reason must expect such reward of their faithfulness to him as the other had nor could the Duke deny the same unless he had disclaimed his own interests whereof he had none to spare Secondly their merit from the Duke was accompanied with no less mutual relation to his Army being of the same blood with themselves and of ancient acquaintance and as impossible it was for the Duke to keep them from consociation with the mixed people as to abstract the mixed people each from other one or both of which must be done and the Conquerours must be kept from incorporating with the conquered or else the Law of Conquest cannot hold Thirdly if these two had failed yet had the Duke by his manner of rewarding his Army disabled himself from holding however he might seem to have by conquest Thus was his gift of Mannors Lands and Franchises unto his Souldiers compleated with their ancient Rights and Priviledges in free service otherwise it had been little better than a Trap to bring his own men into bondage who lately were free Souldiers under no better than a Duke of their own election And their Government in their own Country however big yet had not brought forth a Soveraignty into the World their Duke no compleat King nor themselves so mean as Vassals and it was equally difficult for him to get
because the Ecclesiastical 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 bloud Clergy-men shall not be holden to trial by Battle It was an ancient Law of the Saxons and either by neglect worn out of use or by the valour of the Clergie laid aside as resolving rather to adventure their own bloud than to end their quarrel before the Lay-Judge by Plea but grown weary of that course and likely also put hard to the pinch upon Complaints made by them against Clerk-slayers they are fain to have recourse to their ancient Priviledge Hitherto therefore it is manifest the Clergie were in their growing condition notwithstanding the policy and power of Henry the second who was the Paragon of that age After him reigned Richard the first that must expiate his disobedience to his Father by obedience to his ghostly Father the Pope in undertaking the holy War and being gone left the Government in his absence so deeply intrusted to the Clergy as they could lose nothing of what they had gained unless they would and might have gained much more than they did or should had not the Bishop that was the overseer of the whole Kingdom been drunken with vanity and spued out his own shame However the success was it was not contrary to the principles of those times for Richard had experience in the Emperour Frederick and his Father's example that the Pope and Clergie were too hard for all the Potentates in Europe and therefore might most safely trust them with all he had at home whilst he was in their service abroad Nor were they short of what was intrusted to them but stuck close for the maintenance of his right to the Crown and emptied themselves even to the very consecrated Vessels and procured the Laity of all sorts to do the like to save the Kingdom from the rape of strangers and usurpers who esteemed the King dead in Law and as one buried alive Thus passed they to King John the Government supposing themselves well enough assured of what they had gotten by their several atchievements had under the Reigns of three several Kings successively And King John might well enough have understood the times if he had seriously considered them but being heightned all his life-time with lawless Government wherein he was trained up in Ireland he knew not how to stoop till he stooped so low as the Legat's Knee and his Crown at the Pope's Foot leaving an example to posterity to beware of striving with the Clergie If then these sparks of ambition were so violent being alone certainly in their joynt consultations much more They had long striven now since the Conquest to have excluded the Laity from their Synods and about these days effected it And yet about Henry the second 's time it may be supposed the thing either was not yet done or so lately that the Law was not clear in that point for Petrus Blecensis who was Arch-deacon of Bath about those times in his Epistle to the Arch-bishop of York concerning the restraint of the growing Sect of the Publicans he adviseth in these words Accipite clerum congregate populum ex eorum communi deliberatione qui Spiritum Domini habent terribilis constitutio promulgetur c. And if the Historian doth not mistake the proceedings against that Sect being onely for errours in Religion was in a Council of Bishops and Lords Nevertheless whether present or absent the Laity sate there as Cyphers making the number great but not valuable by themselves For even in the Norman times they were brought so low as the Constitution made by the Clergie wrought more upon them than civility it self can work upon professors of Religion in these days For it seems excess of long Hair was grown to that measure that the Synod cried out against it and decreed that men should cut their Hair so as their Eyes and laps of their Ears might be seen and the King himself I mean Henry the first submitted to this cut and made all his Knights to do the like and exposed themselves to the then-odious by-names of Clowns or Priests like to the round-heads of these days who formerly marched under the title of Criniti or Ruffians This did but touch the Hair but they went to the quick when they decreed that Lords should not sell their Villains and that Outlawries should pass in certain particular cases as in the Constitutions of Archbishop Anselm may appear Afterwards in these Kings times they flew at the Throat of the Government got all places of honour or profit or power whether for Peace or War under their gripe deposed and advanced as they pleased even to the Royal Throne it self and that not onely out of a sudden passion of State but advisedly concluded for a maxime That the election of the King belonged to them as in the case of the election of Maude the Empress they did hold forth to all the World and in which the King also then flattered them as holding their Election so necessary that he kept the whole Synod in duress to have their votes for the election of his Son to be his Successor CHAP. LX. Of the English Commonalty since the Normans time THe dignity of the English Crown thus deflowred by the great men was no loss to the Common people For as in all decays of Monarchy the great men get nothing if they please not the people so the King can hold nothing if they be not contented And yet contented or not contented they could not gain much for as affairs stood then in the Christian world the Politicians discourse of three kinds of Government proved idle neither could Monarchy Aristocracy nor Democracy attain any semblable condition in any place so long as the Church held its design apart and prevailed to have the greatest share in all not now by the favour either of great or small but by a pretended divine right through which they now had gotten to their full pitch of Lordship in the Consciences of men It must be acknowledged that this was a distemper in Government yet such it was as kept humours low and restrained the inordinate excesses that in all kinds of Government are subject to break forth so as neither King nor Lords nor People could swell into larger proportion than would suit with the ends of the Church-men But to mind the matter in hand somewhat the Commons gained in these stormy times The Taxes that they were charged with were rather perswaded than imposed upon them and generally they were sparing in that work and it is noted for the honour of King Steven that though he was seldom without War yet he not onely never charged the people with any Tax but released that of Dane-gelt and acquitted the Subject for ever of that Tax which former Kings challenged as their right all
Circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdom Neither yet did the first Commission continue so long as four years for within that time Richard Lucy one of the Justices had renounced his Office and betaken himself to a Cloister and yet was neither named in the first Commission nor in the latter nor did the last Commission continue five years for within that time Ralph Glanvil removed from the Northern Circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appear though little to the honour of the justice of the Kingdom or of that Judge however his book commended him to posterity I take it upon the credit of the reporter that this itinerary judicature was setled to hold every Seven years but I find no monument thereof before these days As touching their power certainly it was in point of judicature as large as that of the Court of Lords though not so high It was as large because they had cognizance of all Causes both concerning the Crown and Common-pleas And amongst those of the Crown this onely I shall note that all manner of falshood was inquirable by those Judges which after came to be much invaded by the Clergie I shall say no more of this but that in their original these Iters were little other than visitations of the Country by the grand Council of Lords Nor shall I adde any thing concerning the Vicontiel Courts and other inferiour but what I find in Glanvil that though Robbery belonged to the King's Court yet Thefts belonged to the Sheriff's Court and if the Lords Court intercepts not all batteries and woundings unless in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour Trespasses besides Common-pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certain Laws of Judicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matter of the Crown as of property being desirous to observe the changes of Law with the times and the manner of the growth thereof to that pitch which in these times it hath attained We cannot find in any story that the Saxon Church was infested with any Heresie from their first entrance till this present Generation The first and last Heresie that ever troubled this Island was imbred by Pelagius but that was amongst the Britains and was first battered by the Council or Synod under Germanus but afterwards suppressed by the Zeal of the Saxons who liked nothing of the British breed and for whose sake it suffered more haply than for the foulness of the opinion The Saxon Church leavened from Rome for the space of above five hundred years held on its course without any intermission by cross Doctrine springing up till the time of Henry the second Then entred a Sect whom they called Publicans but were the Albigences as may appear by the decree of Pope Alexander whose opinions I shall not trouble my course with but it seems they were such as crossed their way and Henry the second made the first president of punishing Heresie in the Kingdom under the name of this Sect whom he caused to be brought before a Council of Bishops who endeavoured to convince them of their errour but failing therein they pronounced them Hereticks and delivered them over to the Lay power by which means they were branded in the fore-head whipped and exposed to extremity of the cold according to the decree of the Church died This was the manner and punishment of Hereticks in this Kingdom in those days albeit in seemeth they were then decreed to be burnt in other Countries if that Relation of Cog shall be true which Picardus noteth upon the 13th Chapter of the History of William of Newberry out of which I have inserted this Relation Another Case we meet with in Henry the second 's time concerning Apostacy which was a Crime that as it seems died as soon as it was born for besides that one we find no second thereto in all the file of English story The particular was that a Clerk had renounced his Baptism and turned Jew and for this was convicted by a Council of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortal and the manner of conviction of both by a Council of the Clergie and delivered over to the Lay-power who certainly proceeded according to the direction of the Canon or advice of the Council These if no more were sufficient to demonstrate the growing power of the Clergie however brave the King was against all his Enemies in the field Treason was anciently used onely as a Crime of breach of Trust or Fealty as hath been already noted now it grows into a sadder temper and is made all one with that of laesa Majestas and that Majesty that now-a-days is wrapped up wholly in the person of the King was in Henry the second 's time imparted to the King and Kingdom as in the first times it was more related to the Kingdom And therefore Glanvil in his book of Laws speaking of the Wound of Majesty exemplifies Sedition and destruction of the Kingdom to be in equal degree a Wound of Majesty with the destruction of the person of the King and then he nameth Sedition in the Army and fraudulent conversion of Treasure-trove which properly belongs to the King. All which he saith are punished with Death and forfeiture of Estate and corruption of Bloud for so I take the meaning of the words in relation to what ensueth Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with loss of Member and Estate This was the Law derived from the Normans and accordingly was the direction in the Charge given to the Justices itinerant in Henry the second 's time as appeareth in Hoveden But Treason or Treachery against the Oath Fealty or Bond of Allegiance as of the Servants against the Lord was punished with certain and with painful deaths And therefore though the murther of the King was Treason yet the murther of his Son was no other than as of another man unless it arose from those of his own Servants The penalty of loss of Estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the Moveables was to the Sheriff of the County unto whose cognizance the case did belong and the Land went to the Lord immediately and not to the King. But in all cases of Felony and of a higher nature the party though not the King's Tenant lost his personal Estate to the King for ever his Free-holds also for a year and a day after which they returned to the Lord of the Soil by way of Escheat
Fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those Counsels that suited with the most popular way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meer servant and it is hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to govern a King should be much more worthy to govern themselves But the Pope put an end to all occasion of question hereabout for by his Brief he declares the King to be sixteen years old and of age to govern himself and therefore all Castles are forthwith to be rendred up into the King's hands This proved the rock of offence whilst some obeyed the Pope and were impugners of those that put more confidence in the Castles than in the Kings good nature Hence first sprang a civil broil thence want of money then a Parliament wherein the Grand Charter of Englands Liberties once more was exchanged for a sum of Money Thus God wheeled about successes But the King having passed over his tame age under the Government of wise Counsellors and by this time beginning to feel liberty it was his hard condition to meet with want of Money and worse to meet with ill Counsellors which served him with ill advice that the Grand Charter would keep him down make him continually poor and in state of pupillage To this giving credit it shaped an Idea in his mind that would never out for forty years after and thus advised he neglects his own engagement defies the Government that by his Royal word and the Kings his predecessors in cool bloud had been setled and that he might do this without check of Conscience he forbad the study of the Law that so it might die without heir and he have all by Escheat This sadded the English and made them drive heavily the King to add more strengh brought in Foraigners and foraign Councils and then all was at stand The Councils were for new ways The great designe was to get money to supply the King's wants and as great a designe was to keep the King in want otherwise it had been easie for those at the helm to have stopped the concourse of Foraigners other than themselves from abroad the confluence of the Queens poorer Allies lavish entertainment profuse rewards cheats from Rome and all in necessitous times But strangers to maintain their own interests must maintain strangeness between the King and his Subjects To supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a train of oppressions depending thereon Fines and Amercements corrupt Advancements Loans and many tricks to make rich men offenders especially projects upon the City of London Nevertheless all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the Great Charter and many promises pass from the King to that end and after that Oaths and yet no performance This makes the people absolutely deny supplies Then the King pretends Wars in France Wars in Scotland and Wars against the Infidels in the Holy-land whither he is going the people upon such grounds give him aids but finding all but pretences or ill success of such enterprizes they are hardned against supplies of him for the Holy War. Then he seems penitent and pours out new promises sealed with the most solemn execration that is to be found in the Womb of Story and so punctually recorded as if God would have all generations to remember it as the seal of the Covenant between the King of England and his people and therefore I cannot omit it It was done in full Parliament where the Lords Temporal and Spiritual Knights and others of the Clergy all standing with their Tapers burning The King himself also standing with a chearly contenance holding his open hand upon his brest the Archbishop pronounced this Curse ensuing By the authority of God omnipotent of the Son and of the Holy Ghost and of the glorious Mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the Holy Martyr and Archbishop Thomas and of all the Martyrs and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God. We Excommunicate and Anathematize and sequester from our holy Mother the Church all those which henceforth knowingly and maliciously shall deprive or spoil Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or counsel by crossing in part or whole those Ecclesiastical liberties or ancient approved customs of the Kingdom especially the Liberties and free Customs which are contained in the Charters of the common Liberties of England and the Forests granted by our Lord the King to the Archbishops Bishops Prelates Earls Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customs or being brought in have observed and all Writers of Ordinances or Councils or Executioners or such as shall judge by such things All such as are knowingly guilty of any such matters shall ipso facto incur this Sentence such as are ignorantly guilty shall incur the same censure if being admonished he amend not within fifteen days after admonition In the same censure are comprehended all perturbers of the peace of the King and Kingdom for everlasting memory whereof we have hereunto put our Seals And then all throwing down their Tapers extinguished and smoaking they said So let all that shall go against this curse be extinct and stink in Hell. The King all the while continuing in the posture above-mentioned said So God me help I will observe all these things sincerely and faithfully as I am a Man as I am a Christian as I am a Knight as I am a King crowned and anointed If we shall pare away the superstitious ceremonies and consider divine providence we may search into all Histories of all ages and we shall not find a parallel hereunto so seriously composed solemnly pronounced with an Amen from the representative body of the whole Kingdom put in writing under seal preserved to posterity vindicated by God himself in the ruine of so many opposers And yet the dust of time hath almost buried this out of the thoughts of men so as few
in Baronius and the Tenth Article in the Clergies complaint first recited although that complaint both in the 10 11 12 and 33 Articles seem to be but clamour upon Officers and not the Kings Court of Justice Clerks Officers to the Exchequer are to be corrected by their Ordinaries and yet not tyed to residence during their attendance on the Exchequer This is in part an answer to the second Article of the Clergies last complaint and a justification thereof as a thing that is pro bono publico Clergie-mens Goods shall not be Distrained either in the High-way or Sanctuary-grounds unless such as have been of late purchase The complaint exhibited in Henry the third's time and the 8th Article was only in ordinary personal Actions but in the complaint made in Edward the second 's time Article 12. is that it is without cause that they are so distrained This Law yieldeth them somewhat viz. immunity from distress within their ancient possessions which had been by ancient custom priviledged but yields nothing as touching their latter purchased Lands because they had no such custom High-ways and Sanctuaries shall be free for such as abjure so as they shall neither be restrained from liberty nor necessaries kept from them Felons may make free confession to the Priest without danger The grievance in the 22th Article of the Clergies complaint in Henry the Thirds time and the ninth in that of the times of Edw. 2. are hereby relieved provided that the Delinquent keeps himself in due order Houses of Religion shall not be oppressed with Corodies Pensions or entertainments of great men This answered the grievance in the 42. and 43. of the first complaint and the 18th of the latter and in effect little other than what was formerly setled by West 1. cap. 1. The Kings Tenant may be cited before the Ordinary out of their own Town and if Excommunicated for want of appearance the Writ de Excommunicato Capiendo shall be awarded A remedy this was against the grievances in the 12 and 33 Articles of the first complaint and in the 10th Article of the last schedule of complaints And thus the Clergie have gotten the day of the Kings Tenants which they had been striving for ever since the Conquest as may appear by what hath been formerly said and now the Kings Tenants are in no better condition than other men viz. they may now be Excommunicated without the Kings license nor is the answer Nunquum fuit negatum to be referred to the point of Excommunication for that power was denyed them but unto the citing them out of their own Parish which cannot be found to be denyed to the Clergie by any thing that yet appeareth A Clerk presented and found unable by the Ordinary shall be tryed again by the Ecclesiastical and not the Lay-Judge Although the fitness or sufficency of the party presented is to be examined by the Ordinary yet the Civil Magistrate hath power in action brought to enquire and determine whether the Ordinaries work was rightly done and so the 17th Article of the last complaint answered Elections shall be free The Laws was of the same with this in the Stat. W. 1. cap. 5. which see before and it may be that the iniquity of the times continued notwithstanding and so occasioned the renewing of this Law. A Clerk having taken Sanctuary shall not be compelled to adjure Nor after confession of the Crime or appealing others before the secular Judge shall be denyed his Clergie Although the Temporal Courts proceeded not so far as to pass sentence against a Clerk that had taken Sanctuary yet they proceeded to enquiry as may appear by what was said formerly concerning the Stat. West 1. cap. 2. and therefore though this Law in the 15th Chap. alloweth that a Clerk in Sanctuary shall enjoy his Ecclesiastical liberty yet the words legi Regni se reddens are interposed and the reason is because the King upon Indictment found had right to the Delinquents goods and profits of his Lands until due purgation and then his Lands were by a Writ out of the Chancery to be restored to him again nor could any purgation regularly pass before the party was Indicted No Religious House shall be charged with Tax to any Superiour without the Realm of England nor shall send to any visitation out of England This was neither at the request of the Clergie nor act of kindness intended unto them but for the good of the Kingdom to prevent the bleeding of the Treasure of the Kingdom into Foraign parts Patrons of Abbies shall have their custody during their vacancies This was the ancient Law now revived by the Clergies consent and intended for the safeguard of the Revenues of the Houses and their maintenance and therefore it is with a sicut superius dictum est cap. 5. The Goods of the Clergie freed from purveyance unless they will. It was a favour given by Edw. 2. to the Clergie to gain their good will after the death of Gaveston the shameful defeat received in Scotland and some particular testimonies of God's displeasure whereof he began to be somewhat sensible Franchises holden by prescription or Charter confirmed and Tryals by Quo Warranto allowed to be in Eyer It was the common share of the great men but especially of the Clergie to have their Franchises exposed to the prey of the Eagles or to such as hawked for them and it is likely the King had not so easily for gone his prize if all the fat had fall'n to his own share but perceiving that more benefit came to his instruments than was meet and himself little the better thereby he sacrificed his Judges to the people but it was to his own behoof and so gained both credit and favour from the people and profit to himself and in some measure satisfied the 48 49 50. Articles of the Clergies complaint in the time of Henry the Third and the 15th Article of their last complaint Lands or Tenements aliened to a Religious house shall escheat to the Lord if the alienor take the same back to hold of that House The ground hereof principally was the prejudice done to the Lord by destruction of the Tenure albeit that it had been an ancient grievance complained of in the Saxon times That the Clergie were covetous and swallowed down estates and thereby weakned the Kingdom But now they are become even cheaters serving the turns of treacherous Tenants that would give their Lands by compact with the Church-men to receive them again from them to hold of the Church which was a liberty that men thirsted after in those times wherein the Church-men were more adored than their Images It seems this Law was made after Bracton's time if that be true in the second Institutes for he saith that a man may give his Lands to any one whether Christian or Jew or religious person
to the degree of Laws if the Parliament liked them Nevertheless National Synods in England undertook the quarrel of general Councils for Arch-bishop Peckham in a Synod 1280. enjoyned the Constitutions made in the Council at Lyons to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong And before him Boniface made Constitutions in opposition to the customs of the Kingdom so as the matter was now come to a kind of contest whether Synods or Parliaments should hold supremacy in doubtful cases concerning the limits of the Ecclesiastical and Temporal power For henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now think themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inhibendo quod sicut Baronias quas de Rege tenent diligunt nullo modo praesumant concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt quod si fecerint Rex inde se capiat ad Baronias suas And this prevailed so effectually that the Bishops durst not adventure too far lest they should go beyond their guard and therefore they come and ask leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of Bastardy wherein they would have had their consent That Children born before Marriage might be made legitimate by the Marriage subsequent And yet they could not prevail for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon-law and the Laws of the Normans sided with them And so they obtained not their desire although they still retained the Tryal of general Bastardy unto themselves Nevertheless the times were such as Kings being too weakly assisted by the people and the Clergie strongly seconded by the Pope they took advantage of those times of distraction so as to hold themselves no farther obliged to the King than the Pope and their own covetousness would allow them and to make all sure they had setled it so far as they were able by a Constitution that the Clergie were not bound to aid the King Papa inconsulto and they put it in practice in a Synod under Arch-bishop Winchelsie Anno 1295. in the time of Edward the First and although the King prevailed in the conclusion at that time yet from the times of Henry the Third the Clergie for future times granted their aids to the King by themselves and apart from the rest of the body of the Kingdom and held themselves not bound by any aid granted by the Parliament albeit that their own aids granted in their Synods were not obligatory unto the body of the Clergie in this Kingdom unless first allowed and confirmed by the Parliament And thus is England become like a two-bodied monster supported with one pair of Legs CHAP. LXVII Of the condition of the Free-men of England of the Grand Charter and other Statutes during the Reigns of these Kings SHattered asunder by broyls of Civil Wars the Freemen having laid aside that regard of the ancient mutual covenant and bond of Decenners are now become weak and almost enthralled to the lust of Kings Lords Pope and English Clergie and therefore it is no wonder if Taxes and Tributes were many and new although most of them deserved not to march under any banner but the colours of oppression nor did any thing save them from the worst Tenure of all but the several interests of those superiour powers which oftentimes did justle with one another and thereby gave the Commons liberty to take breath so as though for the present they lost ground and hunted upon a cool scent yet they still retained the prey within their view Sometimes they were cast far behind other times they recovered themselves a Truce is cried and Laws are made to moderate all and determine the bounds of every one and thus comes the Grand Charter upon the publick Theatre The Historian saith it was the same with that of King John's framing and yet by comparing them together we find them disagreeing both in words and sence and therefore shall sum the same up as shortly as I can observing the difference of the two Charters as I pass along The First Chapter concerned the Church of which sufficient hath been spoken The Freemen shall enjoy these Liberties to them and their Heirs for ever The Heir in Knight-service shall pay the ancient relief That Reliefs were setled by the Saxons hath been already shewed and also that they were continued and confirmed by Henry the First onely in those times they were paid in Horses Arms c. But in after-times all was turned into money which was more beneficial for all Lords shall have their Wards bodies and Lands after homage received until the full age though the Ward be formerly Knighted The Law of Wardship may seem more anciently seated in this Kingdom than the Normans times for if the Statutes of Scotland bear any credit that Law was in Scotland before those times The Lords were not to have the Wardship before they were possessed of the Tenure because it was theirs as a fruit of the Tenure according to the Saxon Law concerning distress that it could not be in the power of the Lord to distrain till he was possessed of the service And if by fraudulent conveyance the Heir did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appear the Lord might seize the Lands unless in case of Wardship per cause de guard And in case the Lord would hold the Wardship longer than the full age of the Heir an Assize did lie against the Lord for the Heir could not enter without Livery But if the Heir were of full age at the time of the Ancestor's death the Lord could not enter the Lands and yet he should have a Relief and the primer seisin And if the Heir entred the Lands before Homage done he gained no Free hold though he were Knighted before as this Law provideth For it may seem that these times of Civil War brought forth a trick of Knighting betimes as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of War was good or evil And yet reason might induce a conceit that he that was thought meet to do Knight-service in his own person might expect the maintenance fit for the ability of the person and honour of the service Grantees or their Assigns or Committees of Wardships shall preserve the Land c. from Waste and the Tenants from extortion They shall yield up the same stocked
and Kent are saved out of this Law by the Statute the first whereof saves the Land to the Heir from the Lord and the second saves the same to the Heirs Males or for want of such to the Heirs Females and to the Wife her moity until she be espoused to another man unless she shall forfeit the same by fornication during her Widow-hood And by the same Law also the King had all Escheats of the Tenants of Archbishops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden All Wears shall be destroyed but such as are by the Sea-coast The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the Wears to his own use as appeareth by a Charter made to the City of London recited in the second Institutes upon this Law and this was to the detriment of the Free-men especially of the City of London in regard that all Free-men were to have right of free passage through Rivers as well as through Highways and purprestures in either were equally noxious to the common liberty And therefore that which is set down under the example or instance of the Rivers of Thames and Medway contained all the Rivers in England albeit that other parts of the Kingdom had not the like present regard as the City of London had The Writ of precipe in capite shall not be granted of any Freehold whereby a man may be in danger of losing 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 Freehold a Writ of precipe in capite might be had upon a Surmise that the Freehold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoil of the Demandants case and therefore I think the Charter of King John instead of the word Court hath the word Cause There shall be but one known Weight and Measure and one breadth of Cloaths throughout the Realm of England This Law of Weights and Measures was anciently established amongst the Saxons 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 breadth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudicial to the common Trade of the Kingdom it was setled in this manner to avoid deceit and to establish a known price of Cloaths 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. This was a Law of latter original made to take away a Norman oppression for by the Saxon Law as hath been already noted No man was imprisoned for Crime not bailable beyond the next County-court or Sheriff's Torn but when those rural Courts began to lose their power and the Kings Courts to devour Tryals of that nature especially by the means of the Justices itinerant which were but rare and for divers years many times intermitted during all which time supposed Offenders must lie in Prison which was quite contrary to the liberty of the Free men amongst the Saxons This occasioned a new device to save the common liberty by special Writs sued out by the party imprisoned or under bail supposing himself circumvented by hatred and malice and by the same directed to the Sheriff and others an Inquisition was taken and Tryal made of the Offence whether he deserved loss of Life or Member and if it were found for the supposed Offender he was bailed till the next coming 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 countercheck from the Law Or first rather a regulation for it was ordained that the Inquest should be chosen upon Oath and that two of the Inquest at least should be Knights and those not interessed in the Cause But yet this could not rectifie the matter for it seemed so impossible to do Justice and shew Mercy this way that the Writ is at length taken away and men left to their lot till the coming of Justices itinerant But this could not be endured above seven years for though the King be a brave Souldier and prosperous yet the people overcome him and recover their Writs de odio atia again Lords shall have the Wardships of their Tenants Heirs although they hold also of the King in Petit Serjeanty Socage Burgage or Fee-farm Inferiour Lords had the same right of Wardships with the King for their Tenures in Knight-service although their Tenants did hold also of the King unless they held of him in Knight-service which was a service done by the Tenant's 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 Arms or other utensils this was no Knight-service though such utensils concerned War but was called Petit Serjeanty as in the Law-books doth appear Nevertheless Henry the Third had usurped Wardships in such cases also and the same amongst others occasioned the Barons Wars No Judge shall compel a Free-man to confess matter against himself upon Oath without complaint first made against him Nor shall receive any complaint without present proof This Law in the Original is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in express words it is thus No Judge shall compel 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 enquired after and therefore they used in such cases to put him to Oath and if he denied the matter or acquitted himself 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 trick first brought in by the Clergie and the Temporal Judges imitated them therein and this became a snare and sore burthen to the Subjects To avoid which they complain of this new kind of Trial and for remedy of this usurpation this Law reviveth and establisheth the onely and old way of Trial for Glanvil saith Ob infamiam non solet juxta legem terrae aliquis per
are to be ordered by Tutors than Children and therefore this may be annexed to the rest of the Liberties as well as the other Nevertheless it seemeth that the Laws took them into their regard in respect of their Estates which might be abused to the prejudice of the Publick rather than out of any respect had to their persons Now because there is a difference between the disability of these persons the one being perpetual the other temporary therefore is there also by these Laws a difference in the disposal 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 natural affection going along with the blood and this so continued in custom until these times for though the Mirrour of Justice 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 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 But let the time of the entrance of this Law be never so uncertain it is now a declared Law that the King in such cases is the common Curator or Tutor of all such persons as he is a Chief Justice rendring to every one his right The King shall have the Wrecks of the Sea. What shall be called a Wreck the Statute at West 1. declareth viz. Where the Ship so perisheth that nothing therein escapeth alive and these are rather in their original committed to the King as a Curator than given him as a Proprietor although that Custom hath since setled a kind of right which may perhaps be accounted rather a Title by Estoppel For the fundamental 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 appear The Heir in Socage-tenure shall have an Action of Waste and an account against his Guardian for the profits of the Lands and Marriage The Heir in Socage being under age shall also be under custody of such Guardian of the next kinred who cannot challenge right of Inheritance in such Lands so holden as if the Lands descended from the Father's side the Mother or next of the kinred of the Mothers side shall have the custody and so if the Lands descend from the Mother the Father or next kinred of the Father's side shall have the custody And this custody bringeth with it an Authority or Power onely and no Right as in case of the Heir in Knight-service and therefore cannot be granted over as the Wardship in Knight-service might but the Guardian in Socage remaineth accomptant to the Heir for all profits both of Land and Marriage The full age of Tenant in Socage is such age wherein he is able to do that service which is Fourteen years for at such age he may be able by common repute to aid in Tillage of the ground which is his proper service But the Son of a Burgess hath no set time of full Age but at such time as he can tell Money and measure Cloath and such work as concerns that calling Widows deforced of their Dower of Quarentine shall by Action recover damages till they recover their Dower They shall also have power to devise their crop arising from her Dower It was used that the Heir should have the crop with the Land but this Statute altered that former usage and yet saved the Lord's liberty to distrain if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilful 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 less a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wills and not of the Laws of the Kingdom as the complaints of the Clergy in the times of Henry the Third do witness Nevertheless because many mens cases befel not directly within the Letter of any Law for remedy and yet were very burthensome for want of remedy it is provided by this Law that such emergent cases that do fall within the inconvenience shall be comprehended within the remedy of that Law. Aid to make the Son of the Lord a Knight 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 yearly value of Socage-tenure The uncertainties of Aids are by this Law reduced and setled as touching the sum and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular sum hereby but also the age of the Son when he was to be made a Knight viz. at the age of Fifteen years too soon for him to perform Knight-service but not too soon for the Lord to get his money And the Daughter likewise was allowed to be fit for Marriage at Seven years 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 gain that made the Law and it was not amiss to have the aid beforehand though the marriage succeeded not for many years after and if the Lord died in the interim the Executors having Assets paid it or otherwise his Heir 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 later birth albeit even they also have been of ancient constitutions and divers of them itinerant also and some of them setled in one place The work of the Justices itinerant was universal comprehending both the matters of the Crown and Common-pleas That of Oyer and Terminer is onely of Crown-pleas originally commenced and enquired 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 work that is to deliver the Gaols of all criminal offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognizance of Common-pleas onely and
for the most part are but for enquiry All which saving the Justices itinerant in ancient use were instituted about these times and therewith ended both the work and common use of the ancient iters and yet all these later Courts joyntly considered have not the like comprehensive power that the iters had for they had the power of hearing and determining all causes both of the Crown and Common-pleas albeit in a different manner That is to say in the first times promiscuously united into one and the same person but soon after the Norman times and more clearly in the time of Henry the Second that power was divided into several persons some sitting upon the Common-pleas others upon the Crown-pleas The Judges of these journeying Courts were specially assigned by the King as in the case of the Gaol-delivery or setled by the Law upon the Judges of both Benches at Westminister as in case of Oyer and Terminer and of the Assizes or Nisi prius saving that in the last case they were associated with Knights in the Counties for the taking of Assizes Now concerning the Courts that were setled some were setled or annexed to the King 's personal residence as the Chancellor's Court for in these times it began to have a judiciary power of eminent stature and growing out of the decays of the great chief Justice of England Then also the Kings-Bench was annexed by the same Law unto the Kings Court or personal residence as it anciently ever had that honour although it seems the endeavours were to make it like the Common-pleas in that particular Another and last Court that was setled in this manner was the Marshals Court which in the original onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places because the Kings attendants were many in those times whenas the Courts of Justice continually attended on his person and this precinct was called the Verge and all cases of debt and covenant where both parties were of the Houshold and of Trespasses vi armis where one of them was of the Houshold were handled in the Court of the Verge or the Marshals Court. And Inquests of death within the same shall be taken by the Coroner of the County with the Coroner of the Houshold Other Courts were rural and affixed also to some certain place either of the County or Town or other particular place That of the County suffered in these times great diminution even almost to destruction by a Law restraining the power thereof onely to Trespasses of 40 s. value or under for though formerly the Kings Justices incroached upon the County-Courts and contracted suits before themselves which by the ancient Law they ought not yet it was ever illegal and the County-Courts held their right till this Law was made which kept under those inferiour Courts and made them of less account than formerly Nevertheless the Kings Justicies or Writ to the Sheriffs oftentimes enableth the inferiour Court to have cognizance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations Fairs and Markets viz. That no person should be sued in any of them which was not a debter or pledge there CHAP. LXIX Of Coroners Sheriffs and Crown-pleas COroners shall be chosen in the County from the wisest greatest and chief men of the Country Of these Officers formerly hath been spoken as touching their election qualification and work this Law brought in no change of any former Law but onely of a former Custom gained by these degenerating times which brought men into place that were far unfit who otherwise of poor and mean condition maintained themselves by bribery and extortion and being found guilty had not sufficient to give recompence This Law therefore revives the first Law and holds these men to their work of taking Inquests and Appeals by Indenture between themselves and the Sheriff and these were to be certified at the next coming of the Justices The Free-holders in every County if they will shall elect their own Sheriff unless the Sheriffwick be holden in Fee. This was indeed the ancient custom as the Officers of the Kingdom were elegible by the Common-council of the Kingdom so were all the Officers of the County chosen by the County But within a few years in the time of Edward the Second comes another Law That the Sheriffs shall be appointed by the Chancellor Treasurer Barons of the Exchequer and the Justices Which Law was made in favour of the people as by the file of that Statute doth more fully appear for though at the first blush it may seem a priviledge lost by the Freemen that these great men should have the election of the Sheriff yet it proved a great advantage to the common quiet of the people in those times of parties and was so apprehended Otherwise as the case stood in those days of Edward the Second it was no time for him to gain upon the peoples Liberties Nor had the Statute of Articuli super cartas whereof we how treat been penned with these words if they will. And questionless in these days we now live in if the people had but a little taste of this seeming liberty of electing Sheriffs in the County-court as formerly it was used it would be soon perceived that the election of these chief Officers were better disposed in some other hand if rightly pursued Homicide by misfortune shall not be adjudged murder That the Saxons made difference between Homicide by misfortune and that which was done felleo animo or with a spirit of gall formerly hath been shewed now what it was that altered the case I cannot say unless the violence cruelty and oppression of the times Formerly all kind of Manslaughter was finable I mean in the Norman times and so might more rationally be ranked into one degree but now the punishment began to change from forfeiture of Estate and loss of Member to death and forfeiture of Estate and therefore it was more necessary to make the difference in the penalty seeing in the fine formerly a difference was observed and this difference to assert by a Law that might limit the invenomed spirits of the Judges of those days Robbery punished by death This crime hitherto was punished by fine and loss of member at the utmost but is now made capital and punished with death One example whereof and the first that Story maketh mention of we find of an Irish Nobleman in the days of Henry the Third who suffered death for piracy and it was a Law that then though rigorous yet seasonably was contrived to retard the beginnings and hasten the conclusion of a Civil War in a Nation who value their Estates and Liberties above their own lives Rape upon the complaint of the party violated made within forty days shall have right If the Delinquent be convicted without such complaint made he shall be fined
waxing weak by the weakness of their Estates now wasted by the Civil Wars therefore in Edward the Second's time a Law was made to restrain the Felony in such cases onely to the breach of Prison by such as were committed for Felony And as touching Imprisonment upon Excommunication it is manifest that within five years before the making of this Law it was complained that such were set at liberty by the King 's Writ de homine replegiando without the Bishop's consent But now the Clergie had gotten the day of the Law which did much decline from that guard of imprisonment but hated perpetual imprisonment Nor was this complaint grounded upon any other Law than that of the Canon for the Common Law ever held the supreme cognizance of Excommunication within its own power as upon the Writ de quare excommunicato may appear Other crimes are yet also by this Law allowed bail such as are persons indicted of Larceny before Sheriffs c. persons imprisoned upon slight grounds Receivers and Accessories before Felony Trespassers persons appealed by provers after the death of the approvers If bail be granted otherwise than the Law alloweth the party that alloweth the same shall be fined imprisoned render damages or forfeit his place as the case shall require And thus the iniquity of the times was so great as it even forced the Subjects to forgo that which was in account a great liberty to stop the course of a growing mischief Publishers of false News whereby discord or slander may arise between the King and his people shall be imprisoned till he produce the Relator It is therefore an offence against the Crown to procure or maintain an ill conceit in the King of the people or an ill conceit in the people of the King and it is as well an offence against the Crown for the King to conceive ill of his people as for them of him But all must be grounded upon falshood for truth respects no man's person and all men are equally bound by the woe if they call good evil or evil good although difference must be made in the manner of representation And upon this ground of maintaining strife was a Law made also against Conspiracy to make or maintain Indictment Suit or Quarrel and it was likewise finable Redisseisors and postdisseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly Redisseisin was under no other Law than that of Desseisin but by this Law made a matter belonging to the Crown and tried before the same Judges that had the power of enquiry of all offences against the Crown The penalty of imprisonment in this case was to be without bail but onely by the King 's Writ de homine replegiando and yet even thus the penalty was not sufficient to restrain the offence and therefore a Law was made to abridge the power of that Writ as touching such offender and they became irremediable as touching their liberty by that Writ besides that upon recovery had against them they lost double damages Trespassers in Parks and Fish-ponds convicted within a year and a day shall render damages suffer imprisonment for three years and give security of good behaviour for time to come If any Beasts be taken in a felonious manner he shall be proceeded against as a Robber From the times of King Steven the Lords and great men endeavoured to advance their power and greatness so high above the meaner sort of Free men as they made Kings continually jealous of their power Castles had been a bone of long contention between them but they being for the most part taken away the strife was about Prisons and power to imprison offenders and that also after much opposition they laid aside Yet the violence of these times being such as though Felonies were somewhat dreaded Trepasses of the highest nature were little regarded such as were riotous hunting in their Parks and fishing in their Waters The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing but this was also denied them though by Henry the Third in his first time when as yet the Government was not worsted by projects of Arbitrary power or corrupt Counsels of Forreigners nor himself a man able to sway with the Lords in matters that were of doubtful prerogative And to speak indifferently it is better for the Liberty of the Subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by Law than by the Warrants of great men especially in their own cases and therefore in this matter the Kings Prerogative was a patron to the Free mens liberty Nevertheless these great men give not thus over their game for though in times of publick calamities little place is left for pleasure to any man yet when times are grown to more quiet pleasure revives and the great men renew their motion and though they could not obtain prisons to their own use as they endeavoured at the meeting at Merton yet now they obtain the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the loss of their pleasure And yet this Law sufficed them not but they obtain a further priviledge that such persons as are found so trespassing and refusing to submit may be killed without peril of Felony CHAP. LXX Of the Militia during these Kings Reigns THe Souldiery of England may be considered First in regard of the Persons Secondly their Arms. Thirdly their Service The persons were as formerly not onely such as were milites or Tenants in Knight-service but also such as served at the Plough and concerning them both it is to be considered what the Law made by Edw. the 2 d. holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood if they shew not cause to the contrary Regularly all Tenants by Knight-service ought to be Knights but de facto were not so as in these times there was a further work to make a man a Knight than his bare Tenure for such onely were milites facti who had both Lands sufficient to maintain the Arms and state of a Knight and also a body fit to undertake the service in his own person and whereof he had given sufficient proof the field Others that had Land either had not sufficient maintenance or not habiliments of person and as not expected were laid aside of this sort were many by reason of the late Civil Wars in which they had much impaired both their bodies and Estates This rendred the strength of the Kingdom and Militia so much decayed and the minds of men so wearied that they began to love ease before the times would brook it and a cessation from Arms before they had any mind to peace The Parliament
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark and into the main streams And this leadeth on the next consideration viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admiral is as I formerly said a Justice of Peace at Sea maintaining the Peace by power and restoring the Peace by setting an Order unto matters of Difference as well between Foraigners as between the English and Foraigners as may appear by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admiral is the Judge to determine according to Law and Custom Now as subservient unto both these he hath Authority of command over Sea-men and Ships that belong to the State and over all Sea-men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only over the Sea-men serving in the Ships of State but over all other Sea-men to arrest them for the service of the State and if any of them run away without leave from the Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original from whence it is derived namely from the Legislative power of the Parliament and not from the single person of the King or any other Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general interest befalls them all That as they are led by a Law much different from the Courts of Common-Law so are they thereby the more endeared to Kings as being subservient to their Prerogative no less than the Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Original which they say is neither Jus Divinum nor Romanum but that their Lordships power and great possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the positive Law of the Kingdom although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
imprison the person of a Clergy-man than to attach his possessions And therefore they held That if the Ordinary remove not the Incumbent when the King 's Writ commands him so to do his Temporalties should be seized And if the Ordinary should certifie one to be a Clerk which is none the like course is to be taken They shall depute the next and most lawful Friends of the Intestate to administer his Goods The Statute at Westminster the second having given formerly a kind of allowance that the Ordinary should be Administrator to the Intestate so far as to answer the Intestate's Debts lent him thereby an opportunity to possess himself of the whole to all intents and purposes Which being observed by the Parliament by this Law they made way for Administration to fall through the hands of the Ordinary into the Lap of Administrators made by the Authority of the Parliament but of the Ordinaries nomination according to the Authority hereby to him given These Administrators thus made had a greater power than ever the Ordinary had or could give For though the Ordinary by the Statute at Westminster was bound to pay the Debts of the Testator yet could he never bring Action as the Administrator to all intents by this Law is enabled to do And though it be true that the Administrator is by this Law ordered to account to the Ordinary yet doth not that entitle the Ordinary to any interest in the personal Estate but only gives him a bare Authority to take the account without any compulsory power by Ecclesiastical censures to enforce him thereto Secondly it is such an account as is no Evidence in any Court of Record And lastly if upon the foot of the account any arrere remained or surplusage of Estate the Ordinary could neither recover nor order the same because by the Law anciently the next friends had the sole interest therein and being by this Statute made Administrators the whole power of ordering the Estate is vested in them To conclude this Statute was made in favour and for the ease of the Ordinary if they would please so to take it for they could get no benefit by executing the Administration in their own persons if they intended to Administer according to the Law. The persons of the Clergy are priviledged from Arrests during the Holy Actions of the Officiating This was plotted since Anselm's time he and his Successors endeavoured by Constitution and Canon continually to mind the Civil Magistrate thereof but could never nurse it up to the degree of a Law till now they gained the advantages of the times growing into a more tender apprehension of Devotion than formerly The penalty of transgressing this Law is left in general and therefore did the less scare but within three years after it was confirmed with a certain penalty of Fine and Imprisonment as to the King's suit and damages to the party offended and the Priviledge was enlarged for and during their continuance in the Consecrated ground in order to such services and not upon Fraud or Collusion to avoid Arrests But by neither of these Laws was the Arrest although contrary to them made void as touching the Process The Goods of the Clergy are discharged from Purveyance and their Houses from Quarter The latter of these was an Encroachment upon the greater Clergy-men For under the Title of Hospitality which the Prelates were obliged to by their great Possessions and Revenues conferred upon them to that end Kings used to quarter Messengers to and from Scotland the King's Horses Dogs and Hawks c. But the point of Purveyance was an ancient Prerogative belonging to Kings and by no Custom were the goods of any man discharged therefrom till it was by Act of grace first confirmed by Edward the First and afterwards by grant of Edward the Second yet by reason of the rudeness of the times did not those Acts prevail to that settlement that was promised till now Edward the Third renewed the Law. Nevertheless could not this Law of Edward the Third perfect that work because it was but a bare command till Richard the Second made a remedial Law giving thereby the Clergy that were wronged a right of Action of Trespass against the Purveyors and to recover treble damages whereas formerly they were liable only to a Fine to the King which many times was as soon pardoned as asked These condescensions might have wedded the English Clergy to the English Crown but that it was coy and expected further gratuities Besides they beheld their old Step-dame Rome now in its full Splendor and Power and deeply interested in the sway of affairs in this Kingdom and above all the rest the nigh affinity between the Prelate and the Pope was such that they sucked one Milk breathed one Air and like the Philosophers Twins lived in each other The latter of these was not discerned by those dim-sighted times and therefore they could do nothing towards the dissolution of that knot but left it to future times who found no other way than to cut it asunder But Edward the Third and his Successor espyed the first felt the inconvenience thereof and applyed themselves to such remedy as they found most ready at hand All things that are subject to time are also subject to change which comes commonly slower upon Governments that are less Ecclesiastical for Churches continue longer in a growing condition than in their complete estate like a Christian that seldom endures long after his full ripeness Thus in England it is hitherto above a thousand years since the Gospel came to the Saxons and well-nigh a thousand years since the Pope set his foot amongst us ever approaching nigher the Throne and ascending thereunto but finding it full of a King that would not remove he sits down in his Lap a heavy burthen questionless he was considering his claim of Jurisdiction his provisions pensions exemptions impositions and such like oppressions and therefore it is no wonder if the King feeling the incumbrance gives a lift at the Popes power by stoping the current of Money from England Rome-wards To this end the Statute made at Carlisle is revived whereby the Clergy are inhibited from conveying Treasure beyond the Seas but the Pope knew how to ride and will not so easily forgo his saddle The Roman Eagle had made many a fair flight in England and had not yet fully gorged himself he grants ten thousand Marks yearly out of Taxes laid upon the Church-livings in England unto two Cardinals neither of which did nor by the Canon could live in England the Treasurership of York also to another Cardinal after that the King had conferred the same elsewhere He proceeds also further to invade the undoubted rights of the Crown by making an Election of the B. of Norwich and causing him to be invested Rege renitente The King spent eight years in the recovery of his right and was deluded in the
at length setled the Staple in certain places in several parts of the Kingdom But this extended onely unto the Commodities of Wool Leather and Lead for as yet the Manufactures were not come to maturity Secondly the endeavour was to advance Manufacture and principally such of them as are made of the Staple Commodities amongst all which Wool had the precedency as being the most principal and ancient Commodity of the Kingdom and the Manufacture of Wool of long use but had received little encouragement before these times for that it formerly had been the principal flower in the Flemish Garden and nourished from this Nation by the continual supply of Wool that it received from hence which was the principal cause of the ancient League between the House of Burgundy and this Crown But Edward the Third was now too well acquainted with the Flemings affairs by a joynt engagement with them in the Wars of France and therein had gained so good an opinion amongst them that he might adventure to change a Complement for a Courtesie The Staples beyond the Sea were now taken away he now inhibiteth the Importation of forein Cloaths and having gained these two steps onward of his way he represents to the Flemings their unsetled condition by these bordering Wars with France the peaceable condition of England and Freedom of the people then propounds to them an invitation to come over into England promiseth them share and share like with his own people with such other Immunities as they take his offer come over and brought their Manufacture with them which could never after be recalled So as now the Wool and Manufacture dwell together and like to Man and Wife so long as they care for one another both will thrive but if they come to play their Games apart both will be losers in the conclusion The third step to the advance of Trade was the Exportation of the Surplusage of the Staple Commodities that remained over and besides that proportion that should suffice for the Manufactures to which end it was ordered that no Wool should be exported till it had remained at the Staple by the space of Fifteen days That time was necessary and longer time might have been convenient but that the Markets beyond the Sea could not be delayed longer time without much damage to the Merchant and Owner for as much as Winter-time is no time to prepare Wool for the Manufacture and by over-long continuance of the Commodity upon the hand of the Merchant or Owner both the Commodity and the Manufacture might surfeit lie in despair and Trade choaked thereby For it is a necessary preparative to Trade to keep the Nation in some kind of hunger after the Staple-Commodities so as the main Stock be not too great to occupy and yet to leave enough to use But because this Nation formerly had been and as yet were used too much to forein Manufactures the importing of which did debase the home-made Manufactures and discouraged that work therefore the Law was made to reduce the vanity of Apparel which infected these times to more Sobriety Some delight in forein Commodities and Manufactures is doubtless profitable both for Trade and Shipping so as what is Imported exceeds not what is Exported For too much of that makes the Domestick Commodity contemptible the Nation poor and the people want work because it is a noted vanity of this Nation That they love things far fetcht and dear bought As a cure therefore to this disease English Cloth by Law is enjoyned to be worn by all persons under the degree of a Lord and so the former Inhibition of Importation of forein Cloaths was strengthned thereby And because the English Clothiers should not take advantage hereby to raise the price of their Cloaths to their own covetous pin therefore the Law also setled a certain Price and Measure and the same before sale was to be allowed upon view and for the goodness of the Cloaths and perfect working thereof Laws were likewise made against Exportation of all such as were not perfectly made A fourth step to the advancement of Trade was the compelling men to work for when publick employment calls men forth for service in the Field their mindes once in commotion or upon the Wing can hardly settle any where or stoop to the Perk again unless upon hope of prey or gain to be gotten thereby Such were the times of Edward the Third wherein partly for that cause and partly for the scarcity of men left from the Sword and Pestilence not onely Workmen were scarce and dear but even the Mass it self was grown stately the private delights of Kings and great men and scarce vouchsafing to be seen by common gaze but at a great distance The Priests had little Charity and the Poor had as little Money so as no Penny no Pater Noster A sick and very crazy time questionless was it when the Clergie were stately and the Poor idle The Priests Wages for this cause are now setled and they that would get much must get many littles and do much But the greater sore was amongst the poorer sort either they would not serve or at such wages as could not consist with the price of the Cloahts and the subsistence of the Clothier Lâ—aws therefore are made to compel them to work and to settle their Wages so as now it is as beneficial to them to serve the meaner sort of Clothiers as the richer sort for the Master must give no more nor the Servant take more and thus became labour currant in all places A fifth means to advance Trade was the setling of a Rule upon Exportation and Importation this wrought a double effect viz. The enriching of this Kingdom with forein Commodities and the maintaining of Shipping which was and is a principal means not onely of strength unto all Sea-bordering Countries especially regard being had to these three Considerations First That Importation does bring in more profit than Exportation disburseth Secondly That both Exportation and Importation be made by Shipping belonging to this Nation so far as may consist with the benefit of this Nation Thirdly That Exportation be regulated to the Overplus saving the main Stock at home The truth of the first will be evident from this ground That no Nation can be rich that receiveth more dead Commodities from abroad than it can spend at home or vend into forein parts especially if it be vended in its proper kind and not in Money And therefore the Laws provided that no Merchant should Export more Money than he Importeth and what he doth Export must be of the new stamp which it seemeth was inferiour in value to the old yet the times may prove so penurious that this rule may be waved for a season The second is no less beneficial for as it is in War so in all Trades the greater the number is that is employed the more effectual
the issue will be And therefore though it in the general be more beneficial that all Exportation and Importation might be by our own Shipping yet in regard times may be such as now they were that the Shipping of this Nation is more than ordinarily employed for the service of the State And that every Nation striveth to have the benefit of Exportation by Vessels of their own And Lastly in regard the case may be such as Importation may be at a cheaper rate by forein Vessels and Exportation likewise may for the time be more prejudicial to this Nation if done by our own Shipping than those of other Nations Therefore the course must be changed so far forth as will stand with the occasions of the State and common profit of this Nation And for these causes and such-like in the times whereof we now treat the Laws often varied Sometimes no Staple-Commodity must be Exported in English bottoms sometimes all must be done by them and within a year again that liberty was restrained and after that liberty given to Foreiners to Export as formerly The third and last Consideration is as necessary as any of the former for if Trade be maintained out of the main Stock the Kingdom in time must needs be brought to penury because it is their Magazine And for this cause it was provided That all Wool should remain at the Staple 15 days to the end it might be for the Kingdoms use if any one would buy they must do it within that time otherwise it might be exported The sixth means of advancement of Trade was the setling of the Staple for as it was an encouragement to the first establishing of the Manufacture that the Staples were let loose so when the Manufactures had taken root the Staple especially now fixed to places within this Kingdom brought much more encouragement thereto First For preserving a full Market For whilst the Commodity lies scattered in all places the Market must needs be the leaner partly in regard the Commodity lies in obscurity and partly because when it is known where yet it is not easily discovered whether it be vendible or not and besides small parcels are not for every man's labour and the greater are not for every man's money Secondly Staples are convenient for the slating of the general price of the Commodities in regard the quantity of the Commodity is thereby the more easily discovered which commonly makes the price And the quantity of the Commodity thus discovered will not onely settle the price to it self but also ballance the price of the Manufacture Thirdly The Staple having thus discovered the quantity of the Commodity will be a ready way to settle the quantity of the main Stock that must be preserved and regulate Exportation as touching the overplus But it cannot be denied that the first and principal mover of the making of the Staple was the benefit of the Crown For when the Commodity was gone beyond the Sea it importeth not to the Subjects in England whether the same be sold at one place or more or in what place the same be setled until the Manufacture was grown to some stature and then the place became litigious The benefit of Exportation pretended much interest in the setling thereof beyond the Sea but in truth it was another matter of State. For when it was beyond Sea it was a moveable Engine to convey the King's pleasure or displeasure as the King pleased for it was a great benefit to the Countrey or place where-ever it setled or else it moved or stayed according to the inclination of the People where it was either for War or Peace But on the contrary the Interest of the people began to interpose strongly And for these causes the Parliament likewise intermeddled in the place and thus the Scene is altered Sometimes it is beyond the Seas in one place or in another sometimes in England In Edward the Third's time we find it sometimes at Calis sometimes in England In Richard the Second's time we find it again beyond the Seas at Middleburgh thence removed to Calis and after into England Where at length the people understood themselves so well that the Parliament setled the same it being found too burthensome for the Manufactures to travel to the Staple beyond the Seas for the Commodity that grew at their own doors besides the enhansing of the price by reason of the Carriage which falling also upon the Manufactures must needs tend to the damage of the whole Kingdom This was one way indeed and yet possibly another might have been found For if a Computation had been made of the main Stock and a Staple setled within the Kingdom for that and the overplus exported to a Staple beyond the Sea it might have proved no less commodious and more complying It is very true that there are many that call for the Liberty of the people that every man may sell his own Commodity as he pleases and it were well that men would consider themselves as well in their Relations as in their own Personal Respects For if every man were independent his liberty would be in like manner independent but so long as any man is a Member of a Common-wealth his liberty must likewise depend upon the good of the Common-wealth and if it be not good for the Nation that every man should sell his own Commodity as he pleaseth he may claim the liberty as a Free-man but not as an English-man Nor is that liberty just so long as his Country hath an interest in his Commodity for its safety and welfare as in his own person I do not assert the manner of buying the Staple-Commodities by Merchants of the Staple to sell the same again in kind for their private advantage Divers limitations must concur to save it from an unlawful ingrossing nor doth it appear to me that the Staplers in these times used such course or were other than mere Officers for the regulating of the Staple in nature of a Court of Piepowders belonging to some Fair or Market Nevertheless I conjecture that it may well be made evident from principles of State that Marts Markets and Staples of Commodities that are of the proper Off-spring of this Nation are as necessary to Trade as Conduits are to places that want Water The seventh and last means that was set on foot in these times for the advance of Trade was the regulating of the Mint and the current of Money This is the life and soul of Trade for though exchange of Commodities may do much yet it cannot be for all because it is not the lot of all to have exchangeable Commodities nor to work for Apparel and Victual Now in the managing of this trick of Money two things are principally looked unto First That the Money be good and currant Secondly That it should be plentiful As touching the excellency of the Money several Rules were made as against
Indefinite or terminated in the Natural Capacity of the King. And to make a full periodâ— to the point and make the same more clear I shall instance in one Precedent that these times of Edward the Third produced The former English Kings had Title to many Territories in France but Edward the Third had Title to all the Kingdom And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that success that in a little time he â—â—ns the highest seat therein and so brought much honour to the English Nation and more than stood with the safety of the Kingdom For in the union of two Kingdoms it is dangerous for the smaller lest it be swallowed by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the people of England should not be subject to the King or his Heirs as Kings of France Which manifestly importeth that an English King may put himself in such a posture in which Legiance is not due to him and that this posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule an English King. Which if so I suppose this notion of Natural Absolute and Indefinite Legiance to the King in his Natural Capacity is out of this Kingdom if not out of the World and then the foot of the whole Account will be that the Legiance of an Englishman is Originally according to the Laws the sum of all being comprehended in the joynt safety of the people of England CHAP. IX Of Courts for Causes criminal with their Laws THe great growth of Courts founded upon Prerogative derogated much in these times from the Ancient Courts that formerly had attained the Soveraignty over the people and in the hearts of them all This was a hard lesson for them to learn but especially of the King's-Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oyer and Terminer Goal-delivery and Justices of Peace Those of Oyer and Terminer were now grown very common but less esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalf of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full sum made the matter so foul as it became a common grievance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goal-delivery likewise grew more mean and ordinary The chief sort of Men in the several Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance The leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffs Coroners Leets were now grown sowr with Age having attained courses by common practice differing from Oppression onely in Name and yet were the times so unhappy as by these courses they had obtained favour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oyer and Terminer and having learned how to make capital offences pecuniary found-such sweetness as they used not to be weary of their places though the Country grew weary of them and therefore disliking uncertaintes in such matters of benefit they cannot rest till they obtain more certain settlement in their places some for Years others for Life and some for ever The Disease thus contracted by degrees the Cure must be accordingly First the Sheriffwicks much dismembred to please the Court-favourites and fill the Kings privy Purse and all raised to the utmost peny of the full and beyond the just value A Law is made to restore the several Hundreds and Wapentakes to the Sheriffs and their Counties and all of them are reduced to the old Rent And it is likewise provided that none shall execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer damages for injustice by them done And that no Sheriff shall serve in that place above one year and then not to be chosen again for that service till three years be past which latter clause was onely a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their bloud but whom they trusted yet the Sheriff came not so night their skin nor yet so nigh their Free-holds as anciently they had done for that their power in Judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of Justice and his place valuable more than formerly it was holden convenient that such as had the chief power of Judicature at Westminster viz. the Chancellour Treasurer Chief â—aron and the two Chief Justices should nominate the man that should be their Servant and in the Parliament nevertheless they interposed in that Election as often as they saw cause Secondly As touching Causes criminal which more ordinarily come within the cognizance of these Courts They generally held the same regard in the eye of the Law in these times that they had done formerly nevertheless in two crimes these times wrought diversly urging the edge of the Law against the one and abating it as to the other The latter of these is commonly called Petit Treason which is a murther destructive to the Commonwealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families do consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children But by this Law of 25 E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have been as well laid aside as divers others were but that in these times much is to be yielded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable
his game in that Country another plays King by your leave in this and steps into the Throne teaching the King thereby this Lesson though too late That Non-residency is dangerous for a Priest but unto a Prince fatal unless his Subjects be fast to him when he is loose to them CHAP. XIII A View of the Summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns HE that played this prank was the banished Duke of Hertford Son of John of Gaunt and by his death now become Duke of Lancaster by Title and as the Times then were it proved not hard to get more For in uncertain Commonwealths it is an easie thing for a man of opinion that hath less than his due to get more than he ought As Son of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the King's absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Foreign Power or other help saving the advice and interest of Archbishop Arundel who was his Companion in suffering Partner in the Cause and no less welcome to the Clergie than the Duke himself was to the people and so gained power to the Duke though he brought none Upon their arrival the Aspects of all are benign the Dukedom waits for him and in that as in a Mirrour he beholds the way fair and easie yet further it pities him to see the Kingdom so torn in pieces and spoiled The people knew him able and hoped him willing to amend all they offered him their Service which he accepts and therewith the Crown So hard a thing it is for to put a stop to a Conquerour in his career By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a design that in the proof was more easie than commendable and which being effected cost more skill to make that seem fair which was so foul than to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from Dispute whilst Power holds but it looks better from a Foreign Enemy than one sworn to the English Crown and therefore after that had served his turn he disclaimed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessor he glanced upon but durst not adventure it too deep into the peoples consideration whose Ancestors had formerly over-ruled the Case against King John. He then stayed upon a concealed Title from a concealed Son of Henry the Third of whom they who listed might be perswaded but few believed the thing nor did himself but thence takes his slight up to a Jus Divinum or some hidden Fate that called him to the work but even there his Wings failed him and so he falls flat upon the Peoples Election De bene esse Some of these or all together might make Title enough for a great Man that resolved to hold by hook what he had got by crook and therefore trussing them up all together he enters his claim to the Crown As coming from the Bloud Royal from King Henry and through the Right that God his Grace hath sent me with the help of my Kin and Friends to recover the same which was in point to be undone for want of good Governance and due Justice The extract of all is that he was chosen by the People and Parliament then sitting And albeit that by the Resignation of Richard the Second the Parliament might seem in strict construction of Law to be expired together with the Kings power who called them together yet did not that Parliament so apprehend the matter but proceeded not onely to definitive Sentence of deposing him but declared themselves by their Commissaries to be the Three States and Representative of the People of England maintaining thereby their subsistency by the consistence of the Members together although their Chief was for the present like a head in a Trance till they had chosen Henry the Fourth to succeed in the Throne by this means preventing the conceit of discontinuance in the very Bud of the Notion Much like his entry was his continuance a continual tide of Foreign and Domestick War and Conspiracy enough to exercise his great Courage although he was more wise than warlike being loth to take up Arms for well he knew that a sick Title never sleeps but in a Bed of Peace and more loth to lay them down For besides Victory whereby he gained upon his Enemies in time of War he knew how to make advantage of them in time of Peace to secure his Friends to keep others in awe to enforce such Laws as stood with reason of State and the present posture of Affairs and where Laws failed to fill up the period with Dictates of his own Will. And upon this account the Product was a Government full of Ulcers of Bloudshed without regard of persons whether of the Lay or Religious Order without Legal Trial or priviledge of Clerk. So was Archbishop Walden dethroned Archbishop Scroop put to death and Dukes were dismounted without Conviction or Imputation saving of the Kings displeasure Taxes multiplied although begotten they were upon the Parliament like some monstrous Births shewn to the World to let it know what could be done but concealed by Historians to let it know what may not be done Yea the Priviledges of Parliament invaded in point of Election A thing that none of his Predecessors ever exemplified to him nor none of his Successors ever imitated him in Nor had he purposed it but that he was loth the People should know more of the Government than needs must To keep off Foreign Troubles he made Peace with France for longer time than he lived yet was ever infested with the Sword of St. Paul in behalf of Richard the Second's Queen and with the Factions between the Houses of Orleans and Burgundy in which he had interested himself to preserve the Foreign Neighbourhood in Parties one against another that himself might attend his own security at home He would have moved the Scots but they were already under English Banners nor could he reach so far having so many Enemies even in his own bosom The Welsh were big with Antiquity and Mountains of Defence they begin to bethink themselves of their Antient Principality hold the Kings Arms at hard duty
And thus the Free-men yielded up their liberty of Election to the Free-holders possibly not knowing what they did nevertheless the Parliament well knew what they did this change was no less good than great For first These times were no times for any great measure of Civility The Preface of the Statute shews That the meanest held himself as good a man as the greatest in the Country and this tended to Parties Tumults and Bloudshed Secondly Where the Multitude prevail the meaner sort are upon the upper hand and these generally ignorant cannot judge of persons nor times but being for the most part led by Faction or Affection rather than by right Understanding make their Elections and thereby the general Council of this Nation less generous and noble Thirdly There is no less equity in the change than policy For what can be more reasonable than that those men onely should have their Votes in Election of the Common-Council of the Kindom whose Estates are chargeable with the publick Taxes and Assessments and with the Wages of those persons that are chosen for the publick Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficial to the Free-men of England although perchance they considered not thereof and this will more clearly appear in the consideration of these three particulars First It abated the power of the Lords and great Men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly It rendred the Body of the People more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publick regards and under a kind of Ambition to aspire unto the degree of a Free-holder that they may be somewhat in the Commonwealth And thus leaving the meanest rank sifted to the very bran they become less considerable and more subject to the Coercive power whilst in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no less careful to maintain correspondency with the Laws than he was industrious in the attaining of his degree Thirdly But this means now the Law makes a separation of the inferiour Clergie and Cloistered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead persons in Law were nevertheless Free-men in Fact and lost not the liberty of their Birth-right by entring into Religion to become thereby either Bond or no Free Members of the people of England Lastly As a binding Plaister above the rest First a Negative Law is made that the persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the County which tacitly implies that it was too common to advance those of the meaner sort Whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudeness in account or it may be the Yeomanry grew now to feel their strength and meant not to be further Underlings to the great Men than they are to their Feathers to wear them no longer than they will make them brave Secondly the person thus agreed upon his Entertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And Lastly their persons are put under the protection of the Law in an especial manner for as their work is full of reflection so formerly they had met with many sad influences for their labour And therefore a penal Law is made against force to be made upon the persons of those Workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of Confusions yet a foundation was laid of a more uniform Government in future times than England hitherto had seen CHAP. XV. Of the Custos or Protector Regni KIngs though they have vast Dimensions yet are not infinite nor greater than the bounds of one Kingdom wherein if present they are in all places present if otherwise they are like the Sun gone down and must rule by reflexion as the Moon in the night In a mixt Commonwealth they are integral Members and therefore regularly must act Per deputatum when their persons are absent in another Legialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vice-gerents in their absence giving them several Titles and several Powers according as the necessity of Affairs required Sometimes they are called Lord Warden or Lord Keeper of the Kingdom and have therewith the gegeral power of a King as it was with John Warren Earl of Surrey appointed thereunto by Edward the First who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Foreigner had the like power given him by Edward the Second over England to the reproach of the English Nobility which also they revenged afterward Sometimes these Vice-gerents are called Lieutenants which seemeth to confer onely the King's power in the Militia as a Lieutenant general in an Army And thus Richard the Second made Edmund Duke of York his Lieutenant of the Kingdom of England to oppose the entry of the Duke of Hertford afterwards called Henry the Fourth into England during the King's absence in Ireland And in the mean while the other part of the Royalty which concerned the Revenues of the Crown was betrusted to the Earl of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say The King put his Kingdom to farm But more ordinarily the Kings power was delegated unto one under both the Titles of Lord Guardian of the Kingdom and Lieutenant within the same such was the Title of Henry Lacy Earl of Lincoln and of Gilbert de Clare Earl of Gloucester and of Audomar de Valentia Earl of Pembrooke all of them at several times so constituted by Edward the Second as by the Patent-Rolls appeareth So likewise did Edward the Third make his Brother John of Eltham twice and the Black Prince thrice and Lionel Duke of Clarence and his Brother Thomas each of them once in the several passages of Edward the Third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his Reign concerning which see the Patent-Rolls of those years And Henry the Fifth gave likewise the same Title and Authority to the Duke of Bedford upon the King's Voyage into France and afterward that Duke being sent over to second the King
in the French Wars the Duke of Gloucester obtained the same power and place But Henry the Sixth added a further Title of Protector and Defender of the Kingdom and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Gloucester And towards the latter time of Henry the Sixth it was granted by him to Richard Duke of York This Title carried along with it a power different from that of a King onely in honour and the person so adorned may be said to sway the Scepter but not to wear the Crown And therefore in the minority of Henry the Sixth whenas the Government was ordered by the Parliament and to that end a Protector was made and he well guarded with a Privy Council and they provided with Instructions one of them was That in all matters not to be transacted ordinarily but by the King 's express consent the Privy Council should advise with the Protector But this is not so needful in regard that it concerneth the power of executing of Laws which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall pass to the Legislative Power wherein it is evident that the Protector 's power was no whit inferiour to the King's power For First the Protector Ex Officio by advice of the Council did summon Parliaments by Writs even as the Kings themselves under their own Test and if they did not bear the Royal Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the room of a King in order to the perfecting publishing and enforcing of Law to Execution Secondly the Parliaments holden by Protectors and Laws therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdom doth utterly vanish by the personal access of the King because in all places where the King is subservient to the Kingdom or the Commonwealth the Lord Warden in his absence is conservient unto him being in his stead and not under him for the very place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the Fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdom aâ—â— it holdeth in equal force with all other Laws of the highest size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personal presence no more considerable than the presence of his shadow For the King spent three whole years in the French Wars and during that time never saw England where nevertheless in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Gloucester in the last of which this Law was made And in truth if we look upon this Title of the Kingdoms Guardianship in its bare Lineaments without lights and shadows it will appear little better than a Crown of Feathers worn onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so well deserving nor did the Nation expect any such matter from them Edward the First was a wise King and yet in his absence chose Edward the Second to hold that place he being then not above fourteen years of age Afterwards Edward the Second's Queen and the Lords of her party were wise enough in their way and yet they chose Edward the Third to be their Custos Regni then not fourteen years old his Father in the mean time being neither absent from the Kingdom nor deposed but onely dismissed from acting in the administration of the Government Edward the Third follows the same example he first makes his Brother John of Eltham Custos Regni and this he did at two several times once when he was but Eleven years old afterwards when he was about Fourteen Then he made his Son the Black Prince upon several occasions three times Lord-Warden of the Kingdom once he being about Nine years old and again when he was Eleven years old and once when about Fourteen years old Lastly Edward the Third appointed his Son Lionel Duke of Clarence unto this place of Custos Regni when as he was scarce Eight years old all which will appear upon the comparing their Ages with the several Rolls of 25 E. 1. 3 5 12 14 26. 19 E. 3. If therefore the work of a Custos Regni be such as may be as well done by the Infants of Kings as by the wisest Counsellor or most valiant man it is in my opinion manifest that the place is of little other use to this Commonwealth than to serve as an attire to a comely person to make it seem more fair because it is in fashion nor doth it advance the value of a King one grain above what his Personal endowments do deserve Hitherto of the Title and Power the next consideration will be of the original Fountain from whence it is derived wherein the Precedents are clear and plain that ordinarily they are the next and immediate Off-spring of Kings if they be present within the four Seas to be by them enabled by Letters-Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their Authority and if it saw need changed enlarged or abridged both it and them Thus was the Duke of Gloucester made Lord Warden in the time of Henry the Fifth he being then in France in the room of the Duke of Bedford The like also in Henry the Sixth's time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that Title the Title of Protector Afterward at the Duke's going over into France they committed that service to the Duke of Gloucester if I forget not the nature of the Roll during the Duke of Bedford's absence and with a Salvo of his right Not unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the Sixth whereof more hereafter in the next Paragraph Lastly The limitation of this high power and Title is different according to the occasion for the Guardianship of the Kingdom by common intendment is to endure no longer than the King is absent from the Helm either by voluntary deserting the work or employment in Foreign parts though united they be under the Government of the same King together
this Kingdom and yet the Law for all this suffered no change nor did the House of Commons however the name is thrust into the English Ordinary Print ever yield unto the passing of the same but in the Parliament next ensuing complained thereof and protested they would not be bound by such Laws whereto the House of Commons had not given their consent And this dashed the Law quite out of countenance although it holds the place still amongst the number for within four years after the Clergie bring in another Bill of the same nature in general though varying in some particulars but the same was again rejected All the strength therefore of this Law resteth upon the King and House of Lords engaged by the Clergie whom they trusted for their Religion for Book-learning was with them of small account and no less by the King who knew no better way to give the Clergie content that gave him so much as to set the Crown upon his Head nor to discharge his Royal Word passed by the Earls of Northumberland and Westmorland in his behalf unto the Convocation viz. That they were sent to declare the Kings good will to the Clergie and Church-Liberties and that he was resolved to defend all the Liberties of the Church by his Kingly power and to punish Hereticks and the Churches Enemies in such manner as the Clergie should think meet and therefore desired their daily prayers for his own and the Kingdoms safety And yet for all this the people were not of this mind no small part of the Kingdom being overspread with these opinions After Henry the Fourth comes Henry the Fifth and he also makes another essay the former opinions then known onely by the general names of Heresie are now baptized by the new name of Lollardry and grown so overspreading that all the troubles of these times are still imputed to them It was indeed the Devils old and common trick thus to inrage earthly powers against these men although he be hereby but an instrument in the hand of the chief Builder that in laying a sure Foundation doth as well ram down as raise up for the malice of these men made the people of God to multiply Henry the Fifth also published a Law to this same purpose That all persons in place of Government shall swear to use their diligence to destroy all Heresies and Errors called Lollardries That all Lollards convict by the Clergie left to the secular power according to the Laws of Holy Church shall forfeit their Lands and Tenements to their Lords And the King to have the Year and Day and Waste and all his Goods and Chattels If the Lord be the Ordinary the King shall have all No forfeiture to be till the Delinquent be dead They shall be found by Indictment before the Justices of the Peace This Indictment being found shall be sent to the Ordinary with the Prisoner The Indictment shall not be for Evidence but onely for Information These are the principal things contained in this Law which by the manner of the composure seemeth to be of an uncertain colour neither made by the Clergie nor Laity but spoiled between them both The intent thereof seemeth to be principally to draw on the House of Commons to pass the Law under hope of gain by the forfeitures for the penalty is like that of Felony though the crime be not expresly declared to be Felony But the intent fell short in event For first The nature of the Crime is not defined nor declared by any Law and therefore can no man by Indictment be found to be such Secondly No penalty of death hath been by any former or by this Law determined upon such as are guilty for it is not enacted by any Law that such persons shall be delivered to the Secular power c. Thirdly This Statute determining the forfeiture to be not till death and neither that nor any other Law of this Kingdom determining death then is no forfeiture determined Fourthly Though this Law taketh it for granted that Heresie and Errours belong to Ecclesiastical Cognizance yet the same allows of no further proceedings than Ecclesiastical censures Lastly By this Law there can be no proceeding but in case of Indictment for otherwise without Record no forfeiture can be therefore where no Indictment is there is no forfeiture In all which regards it is evident that the Clergie could by this Law neither get fat nor bloud And therefore at their Convocation in the next year following they took another course and ordered that three in every Parish should make presentment upon Oath of such persons as are defamed for Hereticks and the truth so far as they can learn. Which puts me in mind of a Presentment that I have seen by some of St. Mary Overies in these times Item We saine that John Stevens is a man we cannot tell what to make of him and that he hath Books we know not what they are This new course shews plainly that the former held not force as they intended it So God blasted the practices of the Clergie at this time also rendring this Law immaterial that had the form as the other missed in the form and had the matter CHAP. XVIII Of the Court of Chancery IT often befals in State-affairs that extraordinary exigencies require extraordinary remedies which having once gotten footing are not easily laid aside especially if they be expedient for Prerogative The Privy Council in the Star-chamber pretends default of the Common-Law both in speed and severity in Cases whereby the State is endangered The Chancery pretends default by the Common-Law in point of equity and moderation The people taken with these pretences make that Rod more heavy which themselves had already complained of What the Chancery was in times past hath been already shewed still it is in the growing and gaining hand First In the Judicatory power it prevailed in relation to the Exchequer exercising a kind of power to survey the proceedings thereof in cases of Commissioners distrained to account for Commissions executed or not executed For it was no easie matter to execute Commissions from the Exchequer in those times of parties nor were men willing with such unwelcome occasions between Friends and Neighbours and it may be they grew weary of embroiling themselves one against another and of being Instruments of the violent countermotions of Princes and great men Secondly It gained also upon the Admiralty which by former Laws had Jurisdiction in all cases incident upon the great Sea. But now either through neglect of the Admiral or the evil of the Times occasioning Piracies to grow epidemical the ill government upon the Sea became dangerous to the State trenching upon the Truce made between this and other Nations For a remedy whereof first Conservators of the Truce were setled in every Port who had power committed to them to punish Delinquents against the publick Truce both by Indictment at the Kings
Canon And upon this account the King's Ancestors had possessed themselves of the Cells in the hands of Foreigners in times of War and now a deadly feud is stirred between Henry the Eighth and the Pope their holy Father The Children cannot expect to thrive whenas their Father is cast out of doors and so all must out together Yet the manner is observable they must not be cast out but must go out the inferiour and greater part are dead persons have learnt obedience they can neither bark nor bite and therefore they may sleep and what is done must be done with such of them as are alive Upon a Visitation these are brought under the Test and found in such a condition that they had better give way and voluntarily surrender than abide the Trial. Once more the smallest are picked out whilst the greater stand by and wonder but either do not foresee or in despair of altering the King's Resolution do nothing but expect the sad hour which within Four years comes upon them all every one of them chusing rather to surrender and expect the King's Mercie for maintenance during life than adventure against the dint of his Justice and Power and so lose all for they were ill befriended amongst all sorts of the people Thus came the personal Estate and Stock of these Houses to the Kings immediate Treasury and their yearly maintenance to the disposing of the Crown Which might have advanced the same well-nigh to the value of Two hundred thousand pounds yearly but that the King intended to let the people enjoy the fat as well as he that they might be mutually engaged to maintain hold of the Prey that they had joyntly gotten Out of all which nevertheless the Crown had a small rent or service annual for the acknowledgement of their Tenure besides the First-fruits of Spiritual Dignities and the Tenths both which he formerly had already obtained The first whereof was but casual and occasional in the payment arising onely at the entrance of the party into his Promotion and which was gained by the Pope from Edward the First although at his Parliament at Carlisle in his Thirty fourth year he withstood the same This was above Three hundred and twenty thousand pounds in the whole sum The latter was Annual and amounted to above Thirty thousand pounds And thus the Popes Usurpations are turned into duties to the Crown but were much lessened in regard that these Cells and Monasteries were accounted amongst these Ecclesiastical Promotions which by their dissolution fell off in that account Nevertheless the advancement that might by a parcimonious King have been made of the fall of this Cedar was such that the Crown might have been rendred of it self absolute and all-sufficient But Henry the Eighth was not thus minded the Affairs of Europe were gotten into a high pitch Princes generally over-active Henry the Eighth inferiour to none of them what comes in goes out and he is a rare example of that divine Proverb As Riches increase so do the Mouths of them that eat he still stands in need of his peoples Love Purses and Power So Divine Providence orders the matter that Kings can never attain further end of their undertakings without the aid of the people than their labour lest they should be too big to be Christians and the people too mean. CHAP. XXVIII Of the condition of the Parliament in these Times THey are no good Expositors that consider their Text by piece-meal onely nor they good Historians that will tell you the bare Journal of Action without the Series of Occasion Such as these will speak much of the actions of Henry the Eighth what advancement he brought to the Crown and make a compleat Monarchy wherein the King may act what he resolveth resolve what he pleaseth and please what he lusteth whenas in truth the thing is nothing so For though many of his actions in relation to particular persons cannot be justified by any Law so in truth did they never proceed from any Law but meerly from the passion or will of the man and connivance of the people who could bear that from this King that their Ancestors would never endure under any other And yet in all the grand concernments of the Nation the Law kept still upon the top nor did the King enter into any competition therewith or lead the way thereunto other than by especial allowance of the Parliament For first It is evident though the King was Supream Head of the Church yet this was not like the head of a mad man led by phancy without the Law of reason or reason of Law But it was defined circumscribed and formed thereby with Qualifications and Limitations as hath been already expressed in the former Chapter Seondly It is no less clear that the Legislative Power rested in the Parliament and not in the King when he was in his greatest height For as Head of the Church he had no such power in Church-matters or if he had such a right it was taken away by the Acts of Parliament Nay when the Pope was yet possessed of this Headship the Parliament did determine the manner of the Worship of God in some particular cases as in the keeping of the Lord's Day the Statute of Edward the Fourth to the Honour of God did provide for the observing thereof and to the Honour of God it was taken away by a Statute in the time of Henry the Eighth if the words of either Statute may be believed But more especially after that this Headship was translated to the King the Parliament provided that the Canons should be examined and allowed by the King and Thirty two persons one part of the Clergie the other of the Temporalty chosen by the King. And those that shall be assented unto and confirmed by the King and the Thirty two persons or the Major-part of them shall be obeyed and put in execution the residue shall be void Provided nothing shall be done against the Kings Prerogative or the Laws and Customs of this Realm So as the King had much but he had not all and what he had the Parliament gave him by a Law that was executory all the days of Henry Eighth by divers continuances and was not any power devolved to the Crown under the Title of Supremacie nor by vertue of the Act of Parliament concerning it but by the continual influence from the Parliament upon the Crown as well before that Act as after derived upon it The King hath then this right of Law making but it is with the Thirty two he hath it but not his Successors And lastly he hath it but by a derivative power from the Parliament and a Committee for that service And in a word he hath the Power but the Parliament hath still the Law of that Power The second Priviledge of the Parliament hitherto concerneth onely Laws concerning Church-Government In the next place cometh to be considered
once concerned his own Wife which however so nighly related to him as next to his own person and under the determination of the immediate Law of God yet was so cast upon their Sentence as if he durst adventure his own Soul at their direction The other concerned the Crown to which he ought relation above his own person which he laid down at the feet of the Parliament seeking to their power to fulfil his own pleasure The Ball is tossed up and down sometimes amongst the issue between the King and the Lady Anne Bullen another while amongst the issue between him and the Lady Jane Seymor or such as the King should nominate by Letters-Patents or last Will. After that to the Ladies Mary and Elizabeth to perform conditions declared by the King's Letters-Patents or his last Will. The King then is trusted but he hath his trust from the Parliament the Crown is intail'd as it hath been ever since Richard the Second's time but it is done by Parliament The reversion is in the Clouds but the right of Inheritance much more The Conclusion of all is this The Parliament by serving these Kings turns turned their turns into their own CHAP. XXIX Of the power of the Clergie in their Convocation THe Convocation of the Clergie like some froward Children loves not new dressing though it be a gainer thereby Before the Pope and Henry the Eighth were faln asunder their masters their minds thâ—â—r work all was double their Councils uncertain their Conclusions â—ow in Production and sleight in their Fruit and Consequence sometimes displeasing to the Pope sometimes to the King generally to themselves Who naturally lingering after their own interests were compelled to feed that bodie that breathed in them rather than that wherein themselves breathed and so like hunted Squirrels from bough to bough were ever well tired yet hardly escaped with their own Skins in the conclusion Now Henry the Eighth tenders them better conditions both for ease and Honour and more suitable to their own Interest yet they are loath to accept because they had been Slaves by Prescription Formerly they were troubled with multiplicity of Summons sometimes from the King sometimes from the Pope sometimes from the Metropolitan and always over dripped by a Forein power that they could propound nothing for the good of the Souls of themselves or others but must be blasted from without their labours lost their undertakings vain and themselves in the conclusion sit down choaked in their Consciences and Desires Now they are at no man's call but the King 's and that by Writ Provincial and Legate à Latere must meddle no more Formerly it is taken for granted that Kings have no Vote in matters Ecclesiastical though themselves be interested therein and therefore if he will accept of a Disme he must accept it Statu quo it is granted nor can he interpose his Dissent nor do they much care for his consent But whether the King be concerned or not concerned what they conclude they must maintain Vi Clavibus although in right his Prerogative is above theirs Now by the Statute the Kings Vote is asserted and a Negative Vote restored and himself made as well Head of the Convocation as the Church Nothing can pass there without his concurrence nor come to the consideration of the Parliament without his pleasure and thus the King hath a double Vote in every Church-Ordinance One as in the Parliament to pass the same as an Act of Parliament of which I conceive the Opinion of the Honourable Judge is to be understood the other as a Member of the Convocation to pass their advices to the Parliament and therefore he might either sit in person amongst them or by his Vicar as Henry the Eighth did by the Lord Cromwol By the first the whole Kingdom was engaged By the Second the Convocation onely and that as a Court onely and not the representative of the Clergie because as they had a Spiritual relation so also they had the Common Right of Free-men and therefore could not be bound without the Common Consent of the Free-men Thirdly As their power of Convention and power in Vote so their original Right of the Law-making suffered a change Formerly they depended wholly upon a divine Right which some setled originally in the Pope others in the Prelacie and some in the Clergie But now they sit by a derivative power from the Act of Parliament from which as from their head they receive life and power Fourthly They suffered some change in the very work of their Convention for though formerly they claimed power to meddle onely with Ecclesiastical matters yet that notion was ambiguous and they could many times explicate it more largely than naturally It is not to be denied but the matters concerning the Service and Worship of God are of Spiritual consideration but that such should be so strictly deemed to lie in the way of Church-men onely is to bring all Spirits within the Verge of Ecclesiastical Jurisdiction and to leave the Civil power to rule onely dead Carcasses Much less can any other thing which by prescription hath not been of Ecclesiastical Cognizance be called Spiritual But to come to particulars because generals edifie not The Convocation claimed formerly power as originally from its self to impose Rules for Government upon Church-men and Church-Officers and upon the Laity so far as extended to their Service of God And also to charge the Estates of the Clergie and concerning Matrimonial and Testamentarie Causes They claimed also a power to determine Doctrine and Heresies Yet de Facto divers of these they never acted in that right wherein they claimed to hold Cognizance First As touching the charging of the Estates of the Clergie If it was for the King's Service they were ever summoned by the King 's Writ yet was not their act binding immediately upon the passing of the Vote till the Parliament confirmed the same and therefore the old form of granting of Dismes was Per Clerum Communitatem as by the pleading in the Abbot of Waltham's Case appears For without their concurrence they had no power to charge any Free-man nor to levie the same but by their Church-Censures which would stand them in no stead And in this the Convocation suffered no alteration either in Right or Power by the change thus wrought by Henry the Eighth Secondly As touching imposing Laws upon the Laity in points of Worship and Doctrine it is evident though they claimed such power they had it not For when all is done they were contented at length to get the support of the Statute-Laws of this Kingdom as may appear in the particular Laws concerning the Lords day and proceedings against Herâ—ticks setling the Popedom in the time of the great Schism c. But now all Title of claim is quite taken from them and all is left in the Supream Legislative power of this Nation as
espyed the danger and how necessary it was for the people to be well armed in these times of general broil and upon that ground allowed this Law to pass That all such as had Lands worth 20 l. yearly besides Reprizals should be ready not to be Knights nor under the favour of others is there any ancient precedent to warrant it but to find or to enter into the field with the Arms of a Knight or to provide some able person to serve in their stead unless they were under 21 years of age and so not grown up to full strength of body nor their Lands in their own possession but in custody of their Lords or Guardians Nevertheless of such as were grown to full age yet were maimed impotent or of mean estate and Tenants by service of a Knight it was had into a way of moderation and ordered that such should pay a reasonable fine for respit of such service nor further as concerning 〈◊〉 persons were they bound But as touching such that were under present onely and not perpetual disabilities of body upon them incumbent as often as occasion called they served by their deputies or servants all which was grounded not onely upon the Law of Henry the Second but also upon common right of Tenure The Arms that these men were to finde are said to be those belonging to a Knight which were partly for defence and partly for offence Of the first sort were the Shield the Helmet the Hauberk or Breast-plate or Coat of Mail of the second sort were the Sword and Lance and unto all a Horse must be provided These Arms especially the defensive have been formerly under alteration for the Breast-plate could not be worn with the Coat of Mail and therefore must be used as occasion was provided of either and for this cause the service of a Knight is called by several names sometimes from the Horse sometimes from the Lance sometimes from the Helmet and not seldom from the Coat of Mail. The power of immediate command or calling forth the Knights to their service in its own nature was but ministerial and subservient to that power that ordered War to be levied and therefore as in the first Saxon Government under their Princes in Germany so after under their Kings War was never resolved upon but if it were defensive it was by the Council of Lords if offensive by the general Vote of the Grand Council of the Kingdom So by vertue of such Order either from the Council of Lords or Grand Council the Knights were called forth to War and others as the case required summoned to a rendezvouze and this instrumental power regularly rested in the Lords to whom such service was due and the Lords were summoned by the Lord Paramount as chief of the Fee of which their Tenants were holden and not as King or chief Captain in the Field for they were not raised by Proclamation but by Summons 〈◊〉 forth to the Sheriff with distress and this onely against such as were within his own Fee and held of the Crown The King therefore might have many Knights at his command but the Lords more and if those Lords failed in their due correspondency with the King all those of the inferiour Orb were carried away after them so the King is left to shift for himself as well as he can And this might be occasioned not onely from their Tenures by which they stood obliged to the inferiour Lords but probably much more by their popularity which was more prevalent by how much Kings looked upon the Commons at a further distance in those days than in after-times when the Commons interposed intentively in the publick Government And thus the Horse-men of England becoming less constant in adhering to their Soveraign in the Field occasioned Kings to betake themselves to their Foot and to form the strength of their Battels wholly in them and themselves on foot to engage with them One point of liberty these Souldiers by Tenure had which made their service not altogether servile and that was that their service in the Field was neither indefinite nor infinite but circumscribed by place time and end The time of their service for the continuance of it was for a set time if it were at their own charges and although some had a shorter time yet the general sort were restained to forty days For the Courage of those times consisted not in wearying and wasting the Souldier in the Field by delays and long work in wheeling about and retiring but in playing their prizes like two Combatants of resolution to get Victory by Valour or to die If upon extraordinary occasions the War continued longer then the Tenant served upon the pay of the common Purse The end of the service of the Tenant viz. their Lord's defence in the defence of the Kingdom stinted their work within certain bounds of place beyond which they were not to be drawn unless of their own accord And these were the borders of the Dominion of the Crown of England which in those days extended into Scotland on the North and into a great part of France on the South And therefore the Earl-Marshal of England being by Edward the first commanded by vertue of his Tenure to attend in person upon the Standart under his Lieutenant that then was to be sent into Flanders which was no part of the Dominion of England refused and notwithstanding the King's threats to hang him yet he persisted saying He would neither go nor hang. Not onely because the Tenants by Knight-service are bound to the defence of their Lord's persons and not of their Lieutenants but principally because they are to serve for the safety and defence of the Kingdom and therefore ought not to be drawn into foreign Countries Nor did the Earl-Marshal onely this but many others also both Knights and Knights fellows having twenty pounds per Annum for all these with their Arms were summoned to serve under the King's pay in Flanders I say multitudes of them refused to serve and afterwards joyned with the rest of the Commons in a Petition to the King and complained of that Summons as of a common Grievance because that neither they nor their Ancestors were bound to serve the King in that Country and they obtained the King's discharge under his broad Seal accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmain which was made within the compass of these times by which it was provided That in case Lands be aliened contrary to that Statute and the immediate Lords do not seize the same 〈◊〉 King shall seize them and dispose them for the defence of the Kingdom viz. upon such services reserved as shall suit therewith as if all the service of a Knight must conduce thereto and that he is no further bound to any service of his Lord than will consist with the safety of the Kingdom This was the Doctrine that the
in their Original Bishops were meerly Donatives from the Crown being invested by delivery of the Ring and Pastoral Staff and until King John's time the Canonical way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by divers publick Acts of Parliament in after-times and now by this Law last recited and with this way the King was contented for the space of Six years for the Reformation intended by the King was not done at once but by degrees and therefore though this course of Conge d'eslire was brought into use yet the Parliament being of Six years continuance a necessary thing in times of so great change of Policy began this course of Election by giving the King power to nominate and allowing of the Pope power to grant to such his Bulls or Pall at his own will otherwise they should be Consecrated by Commission without his consent And thus at the first the Pope's Concurrence was not excluded though his Negative was In this posture of affairs comes Cranmer to be consecrated Archbishop And being nominated thereunto by the King the wily Pope knowing the Kings aim meaned not to withstand lest he should lose all but granted the Pall as readily as it was desired so as Cranmer is thus far Archbishop of Canterbury without all exception yet he must go one step farther and take the old Oath to the Pope which the King allowed him to do Pro more and which he did renitente Conscientia say some and with a Salvo say others and all affirm it was done Perfunctorie like some worn Ceremonie or civil Complement Nevertheless it was not so soon turned over the Archbishop loved not the Office the King loved not Partnership in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is loser the English Clergie the savers for the Pall cost Cranmer Nine hundred Marks And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgement and submission but also by a Statute-Law And lastly by Oath which to make sure was treble twined once upon their first submission in the Kings Twentie second year when they had been under Praemuniri Secondly Soon after the decease of Queen Katherine Dowager in the Twentie sixth year which Oath was more compleat than the former containing First A Renunciation of all Fealty to the Pope or any Foreign Power Secondly An Obligation to adhere to the Cause of the King and his Successors Thirdly A Disavowing of the Pope otherwise than as another Bishop or fellow hrother Fourthly An Engagement to observe all Laws already established against the Pope's power Fifthly A Disavowing of all appeals to Rome Sixthly An Engagement to inform the King of all Messages or Bulls sent from Rome into England Seventhly An Engagement not to send or be privy to the sending of any Message to Rome for any such purpose The third Oath was that of Fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacie having been sworn Slaves to the Papacie ever since Becket's time are now preferred to a more Royal Service and the pursuit by Kings after their right being laid aside by the space of 300 Years is now renewed and the prey seized upon by the Lion who found it upon a better Title and in better condition by much than when at the first it was lost For it was upon some semblance of Reason that the Archbishop and Clergie gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the power of his own gripe for the present he is the Occupant and becomes Proprietor by prescription till now the Felon being apprehended the stolen Goods are the Kings in Right and by Remitter whereunto the Parliament by the Statute adding their Conveyance establishes the same by an unquestionable Title Nevertheless their service is no less servile to this Crown than it had been to the Romish Miter formerly they asserted the Pope's Infallibility now the King's Supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the King 's He makes Bishops he makes new Bishopricks and divides or compounds the old as he pleaseth by a power given to Henry the Eighth by Parliament Which Oath was never in any Prince before or after him that I can find so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable Maintenance to support the one and act the other must needs consume himself as one in a Tympanie by growing great For though he was left rich by his Father's Treasure yet his Zeal to Rome in its now poor captivated condition under the Imperial power stirring up in him great undertakings abroad besides his own Pleasures and Gallantry at home exhausted that and doubtless had starved these his grand designs had he not found the hidden Treasures of the Cells and Monasteries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against fear and flattery It was not done without deliberation for the thing was felt as a grievance before the Norman times and complained of in Parliament above a hundred and forty years ago and divers times since but Kings either understood not or believed not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knows much dares do more and is at leisure He will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the work feasible was a president made by Cardinal Wolsey whose power was enough to dissolve some petty Cells and no opposition made The King might well expect the work would be as lawful for him and not much more difficult or if any Storms ensued the people that had so long complained and felt the burthen of these excrescences of the Clergie would soon find out a way to calm them the King need do no more than speak and the people will do This opened the door but that which brought the King in was the hold the Pope had in this Kingdom by these Cloistered people who were persons dead in Law and dead to all Law but the