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
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
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
especially such as the King was most devoted unto to put more confidence in the Pope's Amen than in all the prayers of his Commons with his own Soit fait to boot The sum then will be that the Prize was now well begun concerning the Pope's power in England Edward the Third made a fair blow and drew bloud Richard the Second seconded him but both retired The former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergie For though the times were not so clear as to espy the root of a Pope in Prelacy yet experience had taught them that they were so nigh engaged that they would not part And therefore first they let these men know that Prelacy was no essential Member to the Government of the Kingdom but as there was a Government established before that rank was known so there may be the like when it is gone For Edward the Third being troubled with a quarrel between the two Archbishops of Canterbury and York concerning Superiority in bearing the Cross and the important affairs of Scotland so urging summoned a Parliament at York which was fain to be delayed and adjourned for want of appearance and more effectual Summons issued forth But at the day of adjournment none of the Clergy of the Province of Canterbury would be there and upon this occasion the Parliament was not onely interrupted in their proceedings but an ill Precedent was made for men to be bold with the King's Summons in such Cases as liked not them and thereupon a Statute was made to enforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Nevertheless when the matters concerning provisors began to come upon the Stage which was within two years after that Law was made the Clergy found that matter too warm for them and either did not obey the Summons or come to the Parliament or if they came kept aloof or if not so would not Vote or if that yet order their Tongues so as nothing was certainly to be gathered but their doubtful or rather double mind These Prelates thus discovered the Parliament depended no more upon them further than they saw meet At six or seven Parliaments determined matters without their Advice and such matters as crossed the principles of these men and therefore in a rational way might require their Sence above all the rest had they not been prepossessed with prejudice and been parties in the matter Nor did Edward the Third ever after hold their presence at so high Repute at such Meetings and therefore summoned them or so many of them as he thought meet for the occasion sometimes more sometimes fewer and at a Parliament in his forty and seventh year he summoned only four Bishops and five Abbots And thus the matter in fact passed in these times albeit the Clergie still made their claim of Vote and desired the same to be entred upon Record And thus the Parliament of England tells all the world that they hold themselves compleat without the Clergie and to all intents and purposes sufficient to conclude matters concerning the Church without their Concurrence Thus began the Mewing time of Prelacy and the principal Feather of their wings to fall away having now flourished in England nigh eight hundred years And had future Ages pursued the flight as it was begun these Lordings might have beaten the air without making any speedy way or great work saving the noise A third step yet was made further in order to the reducing of the power of the Popedom in England but which stumbled most immediately upon the greatness of the Prelates For it was the condition of the Spiritual powers besides their height of Calling to be set in high places so as their Title was from Heaven but their Possessions were from Men whereby they gained Lordship Authority and power by way of Appendix to their Spiritual Dignities This addition however it might please them yet for a long time before now it had been occasion of such murmure and grudge in the Commons against the Clergie as though it advanced the Clergie for the present yet it treasured up a back-reckoning for these men and made them liable to the displeasure of the Laity by seizure of their great places whenas otherwise their Ecclesiastical Dignities had been beyond their reach And of this these times begin now to speak louder than ever not only by complaints made in Parliament by the people but also by the Lords and Commons in Parliament to the King That the Kingdom had been now long and too long governed by the Clergie to the disherison of the Crown and therefore prayed that the principal Offices of the Kingdom might henceforth be executed by the Laity And thus the stir arose between the Lords Temporal and Spiritual each prevailing or losing ground as they had occasion to lay the way open for them The Duke of Lancaster being still upon the upper ground that as little regarded the Popes Curse as the Clergie loved him But the worst or rather the best is yet behind outward power and Honourable places are but under-setters or props to this Gourd of Prelacy that might prove no less prejudicial by creeping upon the ground than by perking upward For so long as Errour abideth in the Commons Truth can have little security amongst Princes although it cannot be denyed but it is a good sign of a clear morning when the Sun-rising gloryeth upon the top of the Mountains God gives Commission therefore to a Worm to smite this Gourd in the Root and so at once both Prelate and Pope do wither by undermining This was Wickliff that had the double honour of Learning in Humane and Divine Mysteries The latter of which had for many years passed obscurely as it were in a twilight amongst the meaner sort who had no Endowments to hold it forth amongst the throng of Learned or great men of the world And though the news thereof did sound much of Holiness and Devotion Themes unmeet to be propounded to an Age scarce civilized yet because divers of them were more immediately reflecting upon the policy of the Church wherein all the greater sort of the Church-men were much concerned but the Pope above all the rest the access of all the matter was made thereby more easie to the consideration of the great Lords and Princes in the Kingdom who out of principles of State were more deeply engaged against the Pope than others of their Rank formerly had been Duke John of Gant led the way in this Act and had a party amongst the Nobility that had never read the Canon-Law These held forth Wickliff and his Learning to the world and Edward the Third himself favoured it well enough but in his old Age desiting his
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
relation I shall first fall upon the persons and degrees abstractively then in their Assemblies and lastly of their Laws and customs The Saxons in their first state in Germany were distributed into four Classes viz. the Nobles the Free-men the Manumitted persons and the Bond-men Under the Nobility and from them arose one that was called a King of whom I shall speak apart the two last differed only in the bare liberty of their persons and therefore may be comprehended under one head as they were in their original A King amongst the Saxons in probability was anciently a Commander in the field an Officer pro tempore and no necessary Member in the constitution of their State for in time of peace when the Common-wealth was it self the executive power of the Law rested much in the Nobility but in times of War and in publick distractions they chose a General and all sware Obedience unto him during the War it being finished the General laid down his Command and every one lived aequo jure propria contentus potestate But in their transmigration into Britain the continuance of the War causing the continual use of the General made that Place or Office to settle and swell into the condition of a King and so he that was formerly Dux became Rex there being no more difference in the nature of their places than in the sense of the words the one signifying to Lead the other to Govern so as he that formerly was a servant for the occasion afterwards became a servant for life yet cloathed with Majestly like some bitter Pill covered with Gold to make the service better tasted Nor was the place more desirable if duly considered For first his Title rested upon the good opinion of the Free-men and it seemeth to be one of the best Gems of the Crown for that he was thereby declared to be most worthy of the love and service of the people Yet was the ground of their Election so uncertain as a man might imagine that sometimes there appeared more of the will than of the judgment in it that it might be said to be the more free for they neither excluded women nor children further than present occasions led them The West-Saxons deposed Seburg their Queen because they would not fight under a woman but the Mercians obeyed Elfled their Queen and under her fought valiantly with good success against the Danes imitating the custom of the Sitones or Norwegians in Germany or they might borrow it from the Lacedemonians A Custom it was so much the more honourable by how much it demonstrateth freedom and that the worth of the people rested not so much in the head as it 's diffused through the whole body And it seemeth to run in the Blood of an English-man even to this day to be as brave under a single Queen as under the most valiant King if not much more and still to strive to be as famous for the defence of Majesty wherever they set it as the Britons were of old Nor were they different in their respect of age from that of the Sex for though after the death of Edmond Edwin or Edgar were to have succeeded in the Crown by the right of descent yet the States would not admit them because they were Minors but the Mercians admitted Kenelme a child of Seven years old to be their King. They likewise excluded not Bastards till the Clergy interposed for they having wound themselves into the Councils of the Kingdom procured a Constitution to back them in the Election of Kings Legitimate c. Let the Kings be legally chosen by Priests and Elders and not such as are begotten by Adultery or Incest which Constitution was made in a Legatine Council and confirmed by great Offa. The rule of their Election was the same with that in Germany viz. to elect the chiefest out of the chiefest Family that is the chiefest for worth not by descent yet the honour they bare to their brave Kings who had deserved well made some to honour their posterity and to chuse their eldest after their decease and so in time Crowns were taken up by custom and Election oftentimes subsequent was accounted but a ceremony unless the people will dispute the point Secondly this Election was qualified under a stipulation or covenant wherein both Prince and people were mutually bound each to other the people to defend their King which the Historian saith was praecipuum Sacramentum and the Prince to the people to be no other than the influence of the Law sutable to that saying of Aethelstan the Saxon King Seeing I according to your Law allow you what is yours do you so with me as if the Law were the sole umpire between King and people and unto which not only the people but also the King must submit The like whereunto Ina the great Saxon King also No great man saith he nor any other in the whole Kingdom may abolish the written Laws Kings furthermore bound themselves at their entrance into the Throne hereunto by an Oath as it 's noted of Canutus unto whom after Aetheldred was dead the Bishops Abbots Dukes and other Nobles came and Elected him to be their King and sware Fealty unto him and he again sware to them that Secundum Deum secundum seculum c. viz. according to the Laws of God and of the Nation he would be a faithful Lord to them It 's probable I grant that the praecipuum Sacramentum formerly mentioned was in the first nature more personal for the defence of the person of their Leader whilst he was their Captain because it much concerned the good of the Army and without whom all must scatter and be brought to ruine and this the words of the Historian do evidence But the safety of the whole people depended not on him after the War was done and therefore the Oath tied them not any further nor did the safety of the people afterwards when as the Saxons entred this Land so absolutely rest upon the person of the King especially if he proved unfit to manage the work and therefore the fealty that the people sware to their King was not so absolutely determined upon their persons otherwise than in order to the publick weal as may appear from the Laws of the Confessor who was within Thirty years after the Reign of Aethelstan formerly mentioned The words in English run thus All the people in their Folkmote shall confederate themselves as sworn Brethren 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 and that within and without the Kingdom of Britain they will be faithful to him as to their Lord and King. So as 't is evident the Saxons fealty to their King was subservient to the publick safety and the publick safety is necessarily dependant upon the
totius Angliae Ecclesiarum vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I find not but he could never make better use than by way of estoppel unless he meaned to sacrifice his own right as a thank-offering to a shadow which I find not that he or his next Successors ever did But as touching the Laity Histories do not touch upon any conceit of withdrawing Monarchical power It 's true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter or by the Princes fair compliance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude a Saxon King was no other than a primum mobile set in a regular motion by Laws established by the whole body of the Kingdom CHAP XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in War and in Peace That rank of men was continued by three means viz. by Birth or Blood by Valour and by Wisdom The first was rather at the first a stem arising out of the first two than a different degree or kind for Noble blood was at the first enobled by brave actions afterward continued in their honour to their Posterity till by as base courses it was lost as it was gained by worthy Atchievements these were called Adelingi The Nobility of Action consisted either in matters of War or of Peace Those of Peace arose principally from Wisdom which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of War arose somewhat from valour or courage with wisdom but more from good success for many brave and fortunate Commanders have not been very daring and the bravest spirits though wise have not been ever honoured with good success these were called Heretochii Nevertheless all these names or titles were used promiscuously in following times and all called Nobiles But both that and Duces Satrape and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this honourable Band viz. The great Officers of the Kings Houshold and their attests are found amongst the Kings Charters amongst the Nobles and that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but Master of some may by a little courtesie prevail over all This starry Heaven had several Orbs some so high as in common esteem they were next the Imperial Heaven having a tincture of Royal Blood and at the next door to the Throne Others though not of so clear light had nevertheless no less powerful influence upon the people but rather more by how much more nigher to them Their power in matters of Peace or Government of the Commonwealth was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publick in convocating and directing the people De minoribus rebus consultant principes These minora are such as are subservient to the majora and pro hic nunc require suddain order touching any particular part or member of the Common-wealth At other times they visited their several Territories or Circuits hearing and determining matters of Controversie and executing Judgment according to the known Laws Principes jura per pagos vicosque reddunt Yet they had Comites of the Country joyned with them whereof afterward This was their course in German Saxony but in England the new stem of Kingly power arising higher than all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regal order and the Lords executed the same as Deputies from and under him designed thereto by Writs and Commissions as it is more particularly noted of King Alfred The Lords thus lessened in their judiciary power carried the less authority in their Votes and Consultations The King was a perpetual Moderator in that work and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it 's a hard thing for one that hath yielded his heart to admiration to keep it from adoration This hath mounted up Kings to the top more than their own ambition and made them undertake what they ought not because we esteem more highly of them than we ought I speak not against due but undue Obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion as they did many times and advised others to do the like Nor had Kings by degrees become beyond controul and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldness to set a Law upon the exorbitancy of their King as in that case of Aethelwolf and his Queen amongst others may appear but that was like some enterprizes that owe more to extremity of occasion than to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Freemen called anciently Frilingi or Free-born or such as are born free from all yoke of Arbitrary power and from all Law of compulsion other than what is made by his voluntary consent for all Freemen have votes in the making and executing of the general Laws of the Kingdom In the first they differed from the Gauls of whom it is noted that the Commons are never called to Council nor are much better than servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt And therefore those that were elected to that work were called Comites ex plebe and made one rank of Freemen for wisdom superiour to the rest Another degree of these were beholding to their Riches and were called Custodes Pagani an honourable title belonging to Military service and these were such as had obtained an estate of such value as that their ordinary Arms were a Helmet a Coat of Mail and a gilt Sword. The rest of the Freemen were contented with the name of Ceorles or Pagani viz. Rural Clowns who nevertheless were the most considerable party both in War and Peace and had as sure a title to their own liberties as the Custodes pagani or the Country Gentleman had CHAP. XIX Of the Villains amongst the Saxons THe most inferiour rank amongst the Saxons were those that of latter times were called Villains but those also antiently divided into two degrees the
chiefer of which were called Free lazzi These were such as had been Slaves but had purchased their freedom by desert and though they had escaped the depth of bondage yet attained they not to the full pitch of freemen for the Lord might acquit his own title of bondage but no man could be made free without the act of the whole body And therefore the Historian saith that they are not multum supra servos or scarce not servants They are seldom of account in any Family never in any City but in Kingdoms sometimes advanced above the Freemen yea above Nobles Those are now adays amongst the number and rank of such as are called Copy-holders who have the priviledge of Protection from the Laws but no priviledge of Vote in the making of Laws The most inferiour of all were those which were anciently called Lazzi or Slaves those were the dregs of the people and wholly at the will of their Lord to do any service or undergo any punishment And yet the magnanimity of the Saxons was such as they abhorred Tyranny and it was rarely used amongst them by beating torture imprisonment or other hard usage to compel them to serve they would rather kill them as Enemies And this wrought Reverence in these men towards their Lords and maintained a kind of generosity in their mindes that they did many brave exploits and many times not onely purchased their own freedom but also brought strength and honour to the Kingdom And though the insolency of the Danes much quelled this Saxon Nobleness yet was it revived again by the Confessors Laws which ordained That the Lords should so demean themselves towards their men that they neither incur guilt against God nor offence against the King or which is all one to respect them as Gods people and the Kings Subjects And thus much of the several degrees of men amongst the Saxons being the materials of their Commonwealth a model whereof in the making and executing of the Laws and manner thereof now next ensueth CHAP. XX. Of the grand Council of the Saxons called the Micklemote IT was originally a Council of the Lords and Freemen afterwards when they assumed the title of a Kingdom the King was a Member thereof and generally President therein but always intended to be present though actually and in his own person by emergent occasions he may be absent and sometimes by disability of his person he be unmeet to vote or be President in such an Assembly As it was in the Council at Clano or Cleve in Wiltshire when the great case between the Monks and married Priests was concluded the King was absent as the story saith because of his minority and yet if Writers say true he was then in the Sixteenth year of his age The Lords were also nevertheless in the same condition of priviledge as formerly and though it appeareth that the Kings had gotten the priviledge of summoning the grand meeting in his own name yet it was by advice of the great men and being met their Votes were no other in value than as formerly for all their Laws were ex consilio sapientum and for ought can appear out of antiquity the vote of the meanest continued as good as of the greatest arbitrium est penes plebem And thus the Micklemote or Wittagenmote of the Saxons in England continued in the King Lords and Freemen by the space of One hundred and fifty years and in some parts of England nigh Two hundred years before ever the Roman Bishops foot entred or the Roman-Clergy crept into the Councils of State. Afterwards the Prelates were admitted de bene esse for advice as sapientes and continued by allowance how canonically ipsi viderint for I understand it not especially as the Scripture was then expounded Nemo militans Deo implicet negotiis saecularibus yet if they be allowed what in those days they ordinarily took up a degree of policy above devotion that knot is also soon untied I say they entred as Sapientes not as Prelati or Church-governours for then they had holden the same power in Church-matters agitated in the Wittagenmote that they had usurped in their Synods which they held onely for Church-visitation which they could never have because the Sapientes Regni had their votes therein as freely as they Nor could the Prelates by any Law entitle themselves to such power or priviledge so contrary to the priviledge of the Wittagenmote For though it be true that the German Priests had a liberty to be present in these grand Assemblies and to have some presidency therein as to command silence c. yet it is not title to these unless they will interest themselves as their Successors to possess by a jus Divinum that jus Diabolicum which those Priests formerly had in a way of immediate providence somewhat like the possession of the Mantle of Eliah found by Elishah They might I grant plead the title from Kings but it must be granted also that Kings as yet had no more power over the Church than in the Commonwealth Nor could they have that from the Lords which the Lords never had but was ever accounted amongst the majora and of which the Wittagenmote had the only cognizance as it will appear in some particulars ensuing Unto the King Lords and Clergy must be added as I said the Freemen to make up the Micklemote compleat and though it be true that no monument of story speaks of this grand meeting from their being in Germany until after the coming of Austin yet whenas the Saxon Histories then find them in the same condition that the German story leaves them it is very probable that in the interval they continued their wonted custom although they had no Learning to leave monuments thereof unto the world And hereof the examples are not rare in those remembrances that those ancient times have left us For within six years after Austins arrival Aethelbert calls a Common-Council tam cleri quam populi Ina after him made Laws suasu instituto Episcoporum omnium senatorum natu majorum sapientum populi in magna servorum Dei frequentia Alfred after him reformed the former Laws consulto sapientum After him Aethelstan called a Council in which was the Archbishop and with him the Optimates sapientes frequentissimi besides others whereof I shall treat now that I come to the matters handled in this Court. The matters in agitation in the Wittagenmote generally were all both of publick and private concernment That which concerned the publick were such as regarded removal of inconveniencies such as are Laws for Leagues and Affinity with other Nations for preventing of War. And thus became the Saxons and Britons united and the mortal feud between those two Nations laid aside and they made one And the Saxons and Danes reconciled by a Covenant agreed unto and sworn between both Nations The like also
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
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
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
marry at their own will without paying Fine or Composition to the Lord and yet must have the liking of the Lord so far as to declare whether the man intended were his Enemy or not and fit to perform Knight-service This Law was therefore grounded upon the present distress of affairs wherein the Nation was unsetled and common right having established a mutual trust between Lord and Tenant found out this means to preserve the same for if the marriages of those that are related to the Tenant in such manner as may inherit part of all his Lands or have joynture therein should be left altogether at the liberty of the Tenant or his Widow it must needs follow that the mutual trust between Lord and Tenant must fail and the publick receive damage And therefore if this custom were of Norman birth it was begotten upon a Saxon Law and might the rather be owned by the English. The Widow of the King's Tenant having Children shall have her Dower and Portion so long as she keeps unmarried The portion here is in the Latine word maritagium which I take to be the Marriage portion given by the Husband according to the Saxon custom whenas the Dower in Land was not in use whereof is spoken formerly in that Chapter of Dower And the Normans were necessitated to introduce this custom of theirs with themselves partly because it was a priviledge which was their own by birth and it could not be waved without an evident wrong done to the Wives of these men who had ventured their lives in that service but principally because it would not consist with the work in hand to disclaim that custom which must needs be of infinite consequence in the effecting of what was principally sought after viz. the union of the two peoples Normans and Saxons into one I say it was principally sought after by the Norman Conquerour if not led thereto by his own genius yet necessitated thereto by force of reason of State as shall appear hereafter And what could be imagined a more ready way to stay the effusion of bloud and all other unhappy events of enmity than by taking away enmity it self or a more speedy and certain course for union than to reduce the Men and Women of each people to mutual society and to seal up all by a lasting bond of Marriage or greater encouragement for the comfortable proceedings therein than the setling of the constant maintenance of the Wife in case of survivorship by the Law of Dower of the Lands and Tenements of the Husband which was so full of contingencies and uncertainties in the portion of Goods that was by the Saxon Law appointed to the Wife in such case Nor was this all for by Marriage thus made to the Normans they had a great hold not so much over the English as in the English and that not onely during coverture but by reason of this title of Dower the Women became Tenants and under the Lords wing so as they durst not willingly and illegally offend their Lord in their Widowhood nor by Law nor reason match themselves and their Dowry to any other that was not first allowed by the Lord to be in friendship with him and thus became the Tenants Widows to be at the liking of the Lord for their marriage And the like hereto may be said concerning the Husband in case of Tenant by the courtesie and however by the Norman former practice it was much disturbed yet by Henry the first it was again reduced to its former right rather than original arising from his grant as some hold and proved advantageous for the ends aforesaid Now as touching their marriage-portion of Goods because the Saxon Law had already endowed them thereof they could not be induced to lay down their known ancient right till they found the new Law of Dower to settle and so for some time both Laws were in force until the more ancient Saxon law had an honourable burial Nevertheless for the present the Law abridged that right so far as to limit it to the Widow during Widowhood according to the former Saxon-law Upon consideration of all which it may well be conceived that the power of the Lords in consenting or dissenting to the marriages of their Tenants Widows and Wards was not so much an usurpation upon the Common right of the English Subjects as a custom rationally and with great wisdom as the course of affairs then stood upholden and allowed amongst them principally for the speedy setling of a peaceable Government and consolidating of two Nations into one and wherein England was then so happy as to come to a conclusion in seven years which cost their Ancestors night Two hundred years experience with the Britains besides a world of bloud-shed that might have been spared e're they could find out the right way to a desired peace by mutual marriages had between them Such Widow shall have the custody of the Lands of such Children or otherwise such other person as by right ought to have the same This is the first news of Wardships that passed abroad cum privilegio of a received Law which together with the former declare the right custom of the Normans and thereby the injustas consuetudines quibus Anglioe regnum opprimebatur viz. Arbitrary Relief taken of the Tenant's Estate arbitrary Marriages made of their Peersons and arbitrary Grants of Guardianship of their Lands For as yet oppression was not so high-flown as to cast the government of the persons of their Wards out of the view of the Lords provisionary care upon adventure of the next in Law whether man or woman wise or unwise under pretence to train him up in military service fit for the Lord 's own safety and the Kingdoms lifeguard But it was the proper ground of the Lord 's own seisure and right of Wardship he being looked upon by the eye of common reason as the onely meet man that both could and would effect that work so as might be most advantageous to the publick which seemed to be chiefly concerned herein And upon the same general ground the survey of fools accompanied the former albeit it was not in practice till Henry the First brought it in as the Mirror of Justice saith fol. 258. yet it came upon an ancient foundation laid in the time of the Danes For my own part I will not dispute the point whether this custom of Wardship was purely Norman or whether it was derived from the Saxons anciently who possibly might have some respect to Orphans in such cases to train them up for the publick service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some such particular persons in Learning for the service of the Publick in time of peace and civil Government Yet thus much appeareth that Guardianship of Lands was a known Custom
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
up higher as for them to stoop lower And however it was dangerous now for the Duke to try masteries unless he meant to hazard all and to change the substance for the shadow Lastly to lay them all aside and to take the Normans as in themselves considered a People under such Laws and Customs as were the same with the Saxon and originally in them and from them derived into Normandy by Rollo or some other or take them as a People willing to lay aside their own Law as some Writers affirm and more willing to take up the Danish customs which were also very nigh akin to theirs and in part setled by the Danes in that part of the Kingdom where themselves most resided It must be concluded that a Government by Law was intended and such a Law that was no way cross to the Fundamental Laws of this Kingdom but concurring therewith in every of which regards the future Generations may justly claim their Immunities as Successours and Heirs unto the Normans albeit no Saxon could have enjoyed or derived the same to Posterity A second sort of men that made the King uncapable to hold by Conquest was the Clergie a considerable part of the Kingdom in those days whenas in every Nation they grew checkmate and in this Kingdom had well-nigh the one half of the Knights fees and thereby a principal part of the strength of the Kingdom besides the Consciences of them all and for a Reserve they had the Pope in the rear whose power in every Kingdom was little inferiour to that of the King 's own and therefore sufficient to stop an absolute Conquest unless the Clergie were first conquered But the King came in upon great disadvantages in both these regards for whereas his pretence upon his entry was to advance Justice principally toward the Clergie who formerly were wronged by Harold or voiced so to be this bound him from Injustice and Oppression And furthermore the Pope had him in a double bond one as Prince of the English Clergie the other as Judge of the Title of the Crown by the King 's own Election and that by Sentence for the King had merited of him if not to hold the Crown it self by Fealty to the Roman See yet by such services as that the Tripple-Crown should be no loser The King therefore must resolve to have no more to do with the Church than will stand with the Pope's liking unless he meaned to adventure himself and all he had into the danger of the great Curse of which the King would seem more sensible than perhaps he was Nor were those times of the Church so moderate as to bring forth Church-men that would catch the good will of the Laity by condescention or Popes of that height of perfection as to part with one tittle of their great Titles much less ought of that pitch of power which they had griped though it would save the World from Ruine In all which regards the Norman Duke was too far inferiour to attain by Conquest any thing in this Kingdom wherein the Pope or Clergie claimed ought to have or do A third sort of People avoided the dint of Conquest either by timely siding with the Norman or by constant resisting of him or by neutrality Of the first sort were many both Lords and others that by affinity and consanguinity were become English-men to the Norman use others were purchased thereunto by the Clergie that were zealous for the Pope's honour that was engaged in the Work. Of those likewise that were resolute in the defence of the Liberty of their Country there were not a few that purchased their Liberty who otherwise might under pretence of Treachery have forfeited the same to the rapacious humour of the Conquerour And this was not done onely by Valour for Normandy stood in a tottering condition with their Duke partly drawn away by the French that feared the Duke would be too strong for them and partly declining their own further aid lest their Duke should be too great for the Dutchy It was therefore wisdom in the Conquerour to settle the English aflairs in the fairest way to gain them for himself who had been so brave against him But the greatest number especially of the Commons looked on while the game was playing as contented with the cast of the Dice whatever it should be These were afterwards by the King looked upon not as Enemies as the president of Edwin of Sharneburn witnesseth sufficiently but such as either were or by fair carriage would be made his friends and therefore he concluded them under a Law of assurance that they that had been so peaceable should have and enjoy their Lands as entirely and peaceably as they had formerly done before his entry To conclude therefore this point if these three parties of the English Normans the English Clergie the stout English and the peaceable English be set aside from the Title of Conquest it will be probable that not one tenth part of the Kingdom were ever under other change than of the Governour 's own person CHAP. LVI A brief Survey of the sence of Writers concernign the point of Conquest THE clamours in story that the Conquerour altered and made Laws at pleasure brought in new Customs molested the Persons and Estates of the People with Depopulations Extortions and Oppressions and others of that nature have made latter times to conclude his Government to be as of a Conquerour meerly arbitrary and that he did what he list How different this conclusion is from the intent of those Writers I know not but if the King's Title and Government was as a Conquerour then was his Will the onely Law and can administer no cause of complaint of wrong and oppression and therefore if these be taken in nature of complaints they declare plainly that there was a Law in Title or else there could have been no transgression or cause to complain But if the Reader shall apprehend these passages in Writers to be no other than sober Relations then were it not amiss to consider from what sort of men these Complaints or Relations do proceed viz. from Writers that have been cloystered men little seen in affairs of State more than by common report and rumour prejudiced by the King's displeasure against their Cloysters and therefore apprehensive of matters in the saddest sence and many times far beyond the truth and might as well be supposed to mis-relate as to mistake For if we shall touch upon particulars I think no man will deny but the King allowed property indifferently as well to Normans as English if the premises be rightly considered and therefore though somewhat be true of the plundering of houses of Religion persecuting of the English Nobility deposing of Bishops and Abbots whereof they speak yet all might be deservedly done in a legal way and in execution of Justice whereof Histories are not altogether silent Nevertheless if in the prosecution the King did
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
cases and of the Writ de cautione admittenda Persons cited and making default may be interdicted and the King's Officer shall compel him to obey If the King's Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the Process in the Spiritual Courts was to be regulated according to Law. Nor did it lie in the power of such Courts to order their own way or scatter the censure of Excommunication according to their own liking This together with all those that forego the Arch-bishop upon his repentance absolutely withstood although he had twice consented and once subscribed to them having also received some kind of allowance thereof even from Rome it self Clergy-men holding per Baroniam shall do such services as to their Tenure belong and shall assist in the King's Court till judgement of Life or Member Two things are hereby manifest First that notwithstanding the Conquerour's Law formerly mentioned Bishops still sate as Judges in the King's Courts as they had done in the Saxon times but it was upon causes that merely concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spiritual-Courts and not the Clergie out of the Lay-Courts Secondly that the Clergie especially those of the greater sort questioned their services due by Tenure as if they intended neither Lord nor King but the Pope onely Doubtless the use of Tenures in those times was of infinite consequence to the peace of the Kingdom and government of these Kings whenas by these principally not onely all degrees were united and made dependant from the Lord paramount to the Tenant peravale but especially the Clergie with the Laity upon the Crown without which a strange metamorphosis in Government must needs have ensued beyond the shape of any reasonable conceit the one half almost of the people in England being absolutely put under the Dominion of a foreign power Sanctuary shall not protect forfeited Goods nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened without License It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without License or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Church-men to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into a Monastery without the Lord's consent Upon the same ground with the former for the Lord had not onely right in his Tenant which could not be aliened without his consent but also a right in his Tenant's Children in regard they in time might by descent become his Tenants and so lie under the same ground of Law For although this be no alienation by legal purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affairs These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last But their Captain-Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Sampson-like effected more than his life For the main thing of all the rest the Pope gained to be friends for the loss of so great a stickler in the Church-affairs as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishops espied a muse through which all the game of the Popedom might soon escape and the Pope be left to sit upon Thorns in regard of his Authority here in England For let the Metropolitan of all England be a sworn servant to the Metropolitan of the Christian World and the rest of the English Bishops not concur it will make the Tripple Crown at the best but double Alexander the Pope therefore meaned not to trust their fair natures any longer but puts an Oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceal their Counsels 4. To aid the Roman Papacy against all persons 5. To assist the Roman Legat. 6. To come to Synods upon Summons 7. To visit Rome once every three years 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their Estates Bodies and Souls unto her service that which remains the King of England may keep And well it was that it was not worse considering that the King had vowed perpetual enmity against the Pope But he wisely perceiving that the King's spirit would up again having thus gotten the main battle durst not adventure upon the King's rear lest he might turn head and so he let the King come off with the loss of Appeals and an order to annul the customs that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to lose the scare-crow-power of Rome yet it befel him as many great spirits that favour prevails more with them than fear or power For being towards his last times worn with grief at his unnatural Sons a shadow of the kindness of the Pope's Legat unto him won that which the Clergy could never formerly wrest from him in these particulars granted by him that No Clerk shall answer in the Lay-courts but onely for the Forest and their Lay-fee This savoured more of courtesie than Justice and therefore we find not that the same did thrive nor did continue long in force as a Law although the claim thereof lasted Vacancies shall not be holden in the King's hand above one year unless upon case of necessity This seemeth to pass somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole Judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the King's Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a Hundred murthers To prevent this evil the King loth to enter the List with the Clergy about too many matters let loose the Law of feud for the friends of the party slain to take revenge and this cost the bloud of many Clerks The Laity haply being more industrious therein than otherwise they would have been
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his Father be blotted out but it was more troublesome to the people because it cost so much treasure was managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful in most of his undertakings yet never invaded the liberties of the Commons by any face of Prerogative But what wanted in him was made compleat and running over in his Successor John who to speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regain and John could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gain where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant Government such as all men might learn which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in Government is the Law and the Execution the latter being the life of the former and that of the Common-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John or rather the Barons in his time in the publishing of the Grand Charter or an enumeration of the Liberties or Customes of the people derived from the Saxons revived continued and confirmed by the Normans and their Successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work Originally they were in one viz. in the supream Court of Judicature the Court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days were Barons of the Realm and afterwards retained the Title but not the Degree and therefore were called for distinction-sake Barons of the Exchequer The particular times of these deputations appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a Privy-Council taken up unto whom could not regularly belong any juridical power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime Title of Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided into Six Circuits unto each of which was assigned Three Justices so as the whole number of Justices then was Eighteen The office was before the coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four Circuits and unto each Circuit assigned five Justices making in the whole the number of Twenty and one Justices for the Northern
Circuit had six Justices which the King made Justices of the Common pleas throughout the 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
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
that they may not appear to be Clerks 16. Justices itinerant do imprison Clerks defamed for Felony or otherwise out-law them if they do not appear And otherwise proceed against Clerks after their purgation before the Ordinary 18. The Lay-power seizes upon the Estates of Clerks degraded for Crimes 19. Clergie are compelled to answer and give satisfaction for offences against the Forest-Laws before the Lay-power And in case of default the Bishop by distress is compelled to order satisfaction as well in such cases as in personal Actions 22. Priviledges of Sanctuary are invaded by force 23. Executors of Bishops are hindred from administring the Estate without License first obtained from the King. 24. The King's Tenants Goods are seized after their decease by the King's Bayliffs 25. Intestates goods are seized by their Lords and their Ordinary hindred from Administration 26. The King's prohibition passeth in case of Tythes and Chappels 27. The like in cases of Troth plight Perjury Cerage Heriet or other Church-duties as money for reparations of Churches and fences in Church-yards pecuniary punishment for Adultery and costs of suit in Ecclesiastical Court Sacriledge Excommunication for breach of the Liberties of the Church contrary to the Grand Charter 30. In cases of prohibition if the Ecclesiastical Judge proceed contrary to the same he is attached and compelled to shew his Acts in Court if the Lay-Judge determine the cause to be Temporal the Ecclesiastical Judge is amerced if he proceed against the prohibition and it is tryed by Witnesses of two ribaulds and in case it be found for the Ecclesiastical Judges cognizance yet there is no costs allowed for such vexation 32. That Jews in matters Ecclesiastical aforesaid are by the King's prohibition drawn from the Ecclesiastical Judge unto the Lay-Magistrate 34. Question about Lands given in Frankalmoin are tryed in the Lay-Courts and by reason of such Tenure the owners though Clergie men are compelled to do suit at the Lay-Courts and are charged with impositions and are distrained hereunto although the Lord have other Land of the Donor in Frankalmoin subject to his distress 39. Prelates summoned to higher Courts are not allowed to make Attorneys to appear for them in the inferiour civil Courts 41. Grantees of Murage or other unwonted impositions compel the Church-men to pay the same 42 43. The Clergie are charged with Quarter Cart-service and purveying 44. The Chancery sendeth out new Writs contrary to the liberties of the Church and the Law of the Land without the assent of the Council of the Kingdom Princes and Prelates 45. The King doth compel the Clergie to Benevolences to the King at his Voyage into foreign parts 46. Amercements granted to Clergie-men are turned into Fines by the Justices and by them taken 47. Clergie-men are fined for want of appearance before the Justices itinerant and of the Forest upon common summons 48. Quo warranto's granted against the Clergie for their Liberties and the same seized unless they be set down in express words in their Charter notwithstanding that by long custom they have enjoyed the same and many times contrary to express grant This is the sum of their Paper of Grievances and because they found the King either wilful or unconstant they resolve upon a Remedy of their own by Excommunication and Interdiction not sparing the persons of any principal or accessory nor their Lands no not of the King himself and for this they joyn all as one man. Now what scare this made I know not but Henry the third in the Stat. of Marlb and Edward the first in his Stat. at Westminster and other Statutes the first spake fair and seemed to redress some of these complaints as also did Edward the second and yet the Common Law lost little ground thereby That which Henry the third did besides his promises of reforming was done in the Stat. of Marlbridge The successors of Abbots Priors and Prelates c. shall have an Action of Trespass for Trespasses done nigh before the death of their decessors upon the Estates of their Corporations And shall prosecute an Action begun by their Predecessors And also shall have an Assize against Intruders into any of the Possessions belonging to the said Corporations whereof their Predecessors died seized This might seem a remedy provided against the first Malady complained of and questionless bound all but the King and so might perchance abate somewhat the edge of that Article But it being the Clergies reach to grow rich and the Pope's cunning to help on that Work that they might be as stores for supply of his Treasury and had forbidden Abbots and other Prelates c. the liberty of disposing their Estates by last Will Kings therefore as supreme Patrons to these bodies in their vacancies used to seize all the Estates of the Prelates with the Temporalities to their own use as well to preserve the Riches of the Kingdom to it self and the possessions of such Corporations from spoil as to be a cloke of their own covetousness And under the Estates of the Prelates or Heads of these Corporations all the Goods and Chattels belonging to the said Corporations were comprehended in regard that all was by Law adjudged to be in the sole possession of such Head and without whom all the rest were accounted but as dead persons No Clergie-man is bound to attend at the Sheriff's Turn William the Conquerour first exempted the persons of the Clergy from attendance upon Temporal Courts yet they were still urged thereto and especially by a Law in Henry the first 's time but by this Law they are discharged and in some measure a provision made against the grievance in the 39th Article before-mentioned These amends we find made to the Clergie by Henry the third besides his confirming the Grand Charter And his Son Edward the first pursued the same course especially in his first times when he was but tenderly rooted as may appear in the Statute of West 1. Clergie-men nor their Houses shall be charged with Quarter nor their Goods with Purveyance or Cart-service under peril of imprisonment and damages by action or imprisonment The great endowments of Lands Rents and Revenues given to the Church-men by the Laity was for the maintenance of Hospitality and works of Charity The Founders and Benefactors hereby obtained a right of Corody or Entertainment at such places in nature of Free-quarter which in the necessitous times of Henry the third became so common that every one that had power never questioned right and the King above all the rest By means whereof the Church-revenues were exceedingly wasted for remedy whereof all Offenders are by this Statute made liable to fine and imprisonment and double damages in case of Action of Trespass the King onely excepted against whom they had no defence but would rather have won him to have been their defence against the exactions from Rome that
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
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
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
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
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
and Masters under Cade and Straw that might have brought the Commonwealth into a hideous Chaos had not the Lords and Great men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kind of rage that put it self forth beyond the ordinary temper of his mind Much of this mischief was imputed to Wickliff's Doctrine for it is an ordinary thing to proclaim all evils concurring with the very joynt of Reformation to be the proper fruits thereof But I look upon it as a fruit of corruption that endeavours to stop the breath of Reformation in the birth And there is somewhat of a hidden influence from above in the thing for it was not onely the Cup of England to be thus troubled but France and other places had their portion suitable The King's minority rendred him unequal unto these contrary motions he was in his Eleventh year when he entred the Throne and which was worse his years came on faster than his parts but his work posted before them all The common help of Protectors left him yet more unhappy for they were prepossessed with strong engagements of particular Interests and so were either not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affairs and Interests an uncertain good that brings forth a certain evil for variety of Instruments and Interests move several ways and though the end be one the difference concerning the way many times doth as much hinder the Journey as so many blocks in the way The Protectorship was thrice changed the King's Uncles had the first essay any one of them was big enough for one Kingdom but all of them together were too great to make one Protector The Duke of Lancaster would have done well alone if he had been alone and minded that work alone but he being somewhat engaged with the Wickliffists and so entangled with the Clergy and other restless spirits and drawn off by his private aim at the Crown of Castile saw this work too much and so he warily withdrew himself leaving the Directory to a Committee of Lords a soveraign Plaister questionless where the times are whole but not for these distractions wherein even the Committee it self suffered its share Thus the breach is made the wider and for a cure of all the Government is committed into one hand wherein the Earl of Warwick acquitted himself well for he was wise enough to observe such as the people most honoured And thus passed over the two first years of the King's Reign The remainder of the King's minority was rather in common repute than in true account For the King however young took little more from the Protector than he saw meet to colour his own commands with opinion of Regularity and so his Will came to full strength before his Wisdom budded Thus lifted up he sets himself above all interests of Parliaments Protectors Counsellors Uncles Wise men and Law leaving them all to be rules for those below And so long as the King's desire is thus served he is content to be reputed a Minor and be as it were under protection of others though not under their direction and is content to continue thus until his Two and twentieth year Some might think him very moderate had he been moderate but he forbears suing out his Livery so long as he may live without care and spend without controul For by this time the humour of his great Grandfather budded in him he pawned his Heart to young men of vast desires and some say so inordinately as he prostituted his Chastity unto them And it is no wonder if the Revenues of the Crown are insufficient for such Masters This the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crown deflowred for want of maintenance it is very true nor to see the Crown deflowred of its maintenance A Parliament therefore is called in which divers Lords associate and prepare Physick for the King 's lavish humour which being administred wrought for Ten years after till it had purged him of his Life and the Kingdom of their King. It was an Act of Parliament that gave power to Fourteen Lords and others to regulate the profits and Revenues of the Crown and to do Justice to the people this was to continue for one whole year The Parasites no sooner found the effect hereof to their cost but the King grows sick of it and finds an Antidote to over-rule Acts of Parliament by Acts of Privy-Council declares this ill-favoured Commission void and the Contrivers Advisers and Enforcers Traytors To make it more Majestical he causeth the Judges to subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in haste an Impeachment of these Commissioners of High Treason and supposing that they would not readily stoop himself stoops lower for he would put his Right to trial by Battle which was already his own by the judgement of the Masters of the Law For so they may be well called seeing they had thus mastered it In this the King had the worst for he lost his Honour and himself God hath a care of common Right even amongst Idolaters Then comes the Parliament of wonders wherein the Kings Party are declared Traytors and the chief Judges with their Law judged by another Law. The King not meddled with thinks it high time to come out of his Minority and assumes the Government of the Kingdom and himself to himself being now Three and twenty years of Age old enough to have done well if he had cared for it But resolving to follow the way of his own will at length it led him to his own ruine Onely for the present two things delayed it viz. the Authority Wisdom and Moderation of his Unkles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the people The benevolent aspect of the people not for their own advantage but for the publick quiet procured many Parlies and Interviews between the King and people and many Laws for the upholding of the Court and Government although both War Laws Justice and Councils all are faint as all is faint in that man that hath once dismann'd himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himself being nigh Eight and twenty years old takes a Creature like a Wife but in truth a Childe of Eight years old and this is to get peace with France It is no wonder if now he hunts after unlawful game and that being ill taken brings all things out of order For abused Marrige never wants wo. Civil men are now looked upon as severe Cato's and his Unkles especially the Duke of Gloucester with a jealous eye which accomplished his death in
daring Spirits yet do we not meet with a whisper in story of any turbulent or aspiring humour in them or the people during those tenderer times of that King's Reign But after that he came to know more in himself than was to be found and to outreach his abilities having some of the Lords ready at his Elbow to help him these changed the King's course although the general part of that noble Band kept still their Array and retaining the body of the people in due composure thereby declared themselves to be the King's Friends though the others were Richard's Favourites so as he was fain to stoop to occasion and submit to be a King that would have otherwise been more or less And thus the Lords were become Supporters to the Crown Studds to the Throne and a Reserve to the People against the violent motions of an unbridled mind in their King who seeing them so united and endeavouring to break them into parties to obtain his desire lost both it and himself It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Council For however during their minority Counsellors are more rightly Officers of State yet when Kings will be their own men their Counsellors are no other than the breath of the King 's own breast and by which a King may be more truly discerned than any man by his Bosom-friends Edward the Third was a man of a publick Spirit and had a Council suitable to his aim Richard the Second a man that desired what him pleased would have what he desired and a Council he had that served him in all For God answers the desires of mens hearts in Judgement as well as in Mercy and a sore Judgement it is both to King and People when the corrupt desires of the King are backed by a flattering Council It must be granted that the Privy Council of Kings hath been an old Ginn of State that at a sudden lift could do much to the furthering of the present estate of publick Affairs Nevertheless through the Riot of Kings their designes generally tended to make more work for the Parliament than to dispatch to do much rather than well like works for sale rather than for Master-piece and sometimes to undermine yea to out-face the Parliament it self like some unruly Servants that will put away their own Masters Nor can it otherwise be expected unless the King 's elected ones be turned into the Parliaments Committee or that constant annual Inquisition by Parliament be made into their actions for occasional inquiries breed ill blood though no attainder be nor are they easily undertaken whereas constancy in such cases makes the worst to be resolved but into a matter of common course The natural and original power of the Privy-Council is very obscure because there are several degrees of them that occasionally have been used all of whom may deserve the name of Privy-Council in regard of the Parliament which is the most publick Council of all the rest and always hath a general interest in all Causes in the Kingdom The first of these is that which was called The Grand Council of the King which as I think was not the House of Lords who are called by Summons and were onely to attend during the Parliament but a body made up of them and other wise men of his own Retinue And of this it seems there was a constant body framed that were sworn to that service for some in these times were sworn both of the Grand Council and the Privy-Council and so entred upon Record The second of these Councils was also a great Council and probably greater than the other but this was called onely upon occasion and consisted of all sorts like a Parliament yet was none An example whereof we have in the Ordinances concerning the Staple which at the first were made by the King Prelates Dukes Earls Lords and Great men of the Kingdom one out of every County City and Burrough called together for that end their results were but as in point of trial for six Moneths space and then were turned into Statute-law by the Parliament These two are Magna Concilia yet without power further than as for advice because they had no ancient foundation nor constant continuance Another Council remaineth more private than the other of more continual use though not so legally founded and this is called the King's Privy-Council not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice than power of Judicature which more properly is in Banco And yet the power of this grew as virile and Royal as it would acknowledge no Peer but the Parliament and usurped the representative of it as that had been of the whole Kingdom The ambition thereof hath ever been great and in this most notoriously evident that as it had swallowed up the Grand Council of Lords it seldom can endure the mention of a Parliament but when Kings or Affairs are too rugged for their own touch The Platform of their power you may behold in this their Oath 1. That well and lawfully they shall counsel the King according to their best care and power and keep well and lawfully his Counsels 2. That none of them shall accuse each other of any thing which he had spoken in Council 3. And that their lawful Power Aid and Counsel they shall with their utmost diligence apply to the King 's Rights 4. And the Crown to guard and maintain save and to keep off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crown or the Rights of the King to be concealed intruded upon or substracted they shall reveal the same to the King. 6. And they shall enlarge the Crown so far as lawfully they may and shall not accounsel the King in decreasing the Rights of the Crown so far as they lawfully may 7. And they shall let for no Man neither for love nor hate nor for peace nor strife to do their utmost as far as they can or do understand unto every man in every Estate Right and Reason and in Judgement and doing right shall spare none neither for Riches nor Poverty 8. And shall take of no Man without the King's leave unless Meat or Drink in their Journey 9. And if they be bound by Oath formerly taken so as they cannot perform this without breaking that they shall inform the King and hereafter shall take no such Oaths without the King's consent first had All which in a shorter sum sounds in effect that they must be faithful Counsellors to the King's Person and also to his Crown not to decrease the true Rights but to enlarge them yet all must be done lawfully And Secondly that they shall do right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concern the publick onely at a distance and yet
Issue or Demurrer and then to the Common-Law where upon Trial if the Defendant make default the Plaintiff shall have Judgement and Execution And if the Heir be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibit Spiritual Courts and Courts of Common-Law yea to over-rule or reverse Judgements and yet the Common-Law held it's ground when it was concerned for neither were all suits there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Council of the King which were also learned Judges of the Law. For the Report informeth that Edward the Second had granted a Rent in Tail to the Earl of Kent who dying his Son under age and Ward to the King Edward the Third seised amongst other Lands the Rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch-bishop and others of the Council calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the Common-law but it would not be allowed because it was to repeal the King's Charter And whereas it was objected that the reference was to the Archbishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the argument of the case it appears clearly that the King's Council there were learned in the Law. And the same is yet more evident by the Title of Bills in those days exhibited in the Chancery which was directed to the Chancellor and the King's Council and the Rule given Per tout les Justices Which I rather note for the shortness of the form of Bills in those days far different from these times wherein the substance of the complaint however small in it self is oftentimes blown out into so great a bubble that it breaks to nothing And the Statutes formerly mentioned do assert the same thing as touching the King's Council For though they speak of the Council or Chancery in the English Tongue yet in the original the words are Conceil en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same In the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon For remedy whereof it was ordained That upon suggestions so made the Complainant was to find Sureties to pursue the Suggestions and that the Process of Law should issue forth against the party without imprisoning him and that if the Suggestions were not proved true the Complainant should incur the like penalty that the Defendant should have done in case he had been found Guilty But afterwards this later Clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant shall be imprisoned until he shall satisfie the Defendant of his Damages and furthermore shall make Fine and Ransom to the King. But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding Damages in such cases into the Chancellour to do according to his discretion And thus the Chancery obtained power to award Damages which they never had formely and the Chancellour a Precedency both in the Chancery and of the Council in the Court of Star-chamber and in many cases in the Exchequer By the first he had a power in matters of Meum and Tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch-bishop of Canterbury Cardinal and Legate à Latere or Arch-bishop Lord Treasurer and Legate à Latere as these days had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted Worth and Uprightness they make the Scepter stoop by stirring up envy in the Nobility and indignation from the people For seldom is it seen that Advancements are fed from the Crown though they be bred from thence but either maintained by new supplies from the peoples Purses or the ruine or decay of some Officers more ancient than themselves or both And such was the condition of the Chancellour he sucked fat from beneath and Bloud and Spirits from the Grand Chief Justiciar of England and so reduced that Honourable Potentate unto the degree of Chief Justice of the King's Bench leaving scarcely unto him the Name or Title of Lord. One thing more remaineth touching the election or nomination of this Great man. At the first he was no better than a Register or the King's Remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuit of the Writings in his custody and questionless Eo usque it is suitable to all the reason in the World that he should be of the King 's sole Nomination and Election But when it befals that instead of advising the King his word is taken to be the Rule and a Judicatory power put upon that and unto this is superadded that honourable trust of keeping and governing the Great Seal of the Kingdom with the continual growing power occasionally conferred upon him by the Parliament He is now become no more the King's Remembrancer but the Lord Chancellor of England and Supream Officer of State. And it seems but reasonable that he should hold his place by publick Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to work for another must give the other that Honour of Electing him thereto nor was this laid aside nor forgotten by these times but a claim was put in for the Election or allowance of this principal Officer amongst others the Parliament obtaining a Judgement in the case by the King's Confession and so the thing is left to the judgement of future ages Viz. Whether a King that can do no man wrong can dissemble the Royal Assent in Parliament or declare himself legally in that manner by Proclamation CHAP. V. Of Admirals Courts THis is a third Court that maintained the King's Judicatory power in a different way from that which is commonly called the Common-Law and by many is therefore supposed to advance the King's Prerogative but upon mistaken grounds It is very true that the
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
faithfully carried on by him that Justice it self could not touch his person unjustice did and he received this reward from his Nephew Henry the Sixth that he died in the dark because the Cause durst not endure the light Now is Henry the Sixth perswaded that he is of full Age he had laid aside his Guardian the Duke of Gloucester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sun as the Proverb is changing the Advice of a faithful experienced wise Counsellour for the Government of an Imperious Woman his Queen who allowed him no more of a King than the very Name and that also she abused to out-face the World. And after she had removed the Duke of Gloucester out of the way undertook the sway of the Kingdom in her own person being a Foreigner neither knowing nor caring for other Law than the Will of a Woman Thus the Glory of the House of Lancaster goes down and now a Star of the House of York appears in the rising and the people look to it The Queen hereat becomes a Souldier and begins the Civil Wars between the two Houses wherein her English party growing wise and weary she prays Aid of Ireland a Nation that like unto Crows ever wants to prey upon the Infirmities of England The Wars continue about sixteen years by â—its wherein the first loss fell to the English party the pretensions being yet onely for good Government Then the Field is quiet for about four years after which the clamour of ill Government revives and together therewith a claim to the Crown by the House of York is avouched Thereupon the Wars grew hot for about four years more and then an ebb of as long Quiet ensues The Tide at last returns and in two years War ends the Quarrel with the death of Fourscore Princes of the Bloud-Royal and of this good man but unhappy King. Unhappy King I say that to purchase his Kingdoms Freedom from a Foreign War sold himself to a Woman and yet lost his Bargain and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained War with England from the death of Henry the Fifth with various success The Duke of Bedford being Regent for the English for the space of fourteen years mightily sustained the fainting condition of the English Affairs in those parts and having crowned his Master Henry the Sixth in Paris in the ninth year died leaving behind him an honourable Witness even from his Enemies That he was a brave Commander a true Patriot and a faithful Servant to his Lord and Brother Henry the Fifth and to his Son Henry the Sixth But now the Duke of Bedford is dead and though France had concluded a Peace with the English yet they could not forget the smart of their Rod but concluded their Peace upon a Marriage to be had with a Woman of their own bloud and interest And what they could not effect by Arms in thâ—â—r own Field they did upon English ground by a Feminine Spirit which they sent over into England to be their Queen and in one Civil War shedding more English bloud by the English Sword than they could formerly do by all the men of France were revenged upon England to the full at the English-mens own charge For what the English gain by the Sword is commonly lost by Discourse A Kingdom is never more befooled than in the Marriage of their King if the Lady be great she is good enough though as Jezabel she will neither reverence her Husband obey her Lord and King nor regard his people And thus was this Kingdom scourged by a Marriage for the sin of the wise men that building upon a false Foundation advised the King in the breach of Contract with the Earl of Arminiack's Daughter And thus the King also for that hearkning to such Counsel murthered the Duke of Gloucester that had been to him a Father yielded up his Power to his Queen a masterless and proud woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his own Issue to the Line of York then renewing the War at his Queens beck lost what he had left of his Kingdom Country and Liberty and like the King that forgot the kindness of Jehojada lost his Life by the hand of his Servant CHAP. XIV Of the Parliament during the Reigns of these Kings THe Interest of the Parliament of England is never more predominant than when Kings want Title or Age. The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claims by devising their Crown in their last Will but the success must be attributed to some power under God that must be the Executor when all is done and which must in cases of Debate concerning Succession determine the matter by a Law best known to the Judge himself Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leaf dismounts his Predecessor First from the peoples regard and after from his Throne which being empty sometimes he pretended the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the work But when he comes to plead his Title to Foreign Princes by protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the people in his own onely person And so before all the World confessed the Authority and Power of the Parliament of England in disposing of the Crown in special Cases as a sufficient Bar unto any pretended Right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unless his next Successours follow the dance upon the same foot To this end an Act of Parliament leads the Tune whereby the Crown is granted or confirmed to Henry the Fourth for life and entailed upon his Sons Thomas John and Humphrey by a Petition presented 5 Hen. 4. Thus Henry the Fourth to save his own stake brought his Posterity into the like capacity with himself that they must be Kings or not subsist in the World if the House of York prevails And so he becomes secured against the House of York treading on his heels unless the Parliament of England shall
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
with this Nation such as are these parts of France Ireland and Scotland then under the English Fee. This is apparent from the nature of the Statute of Henry the Fifth formerly mentioned for if there was need to provide by that Statute that the Kings arrival and personal presence should not dissolve the Parliament assembled by the authority of the Custos Regni then doth it imply that the personal presence of the King by and upon his arrival had otherwise determined the Parliament and that Authority whereby it sate But the Precedents are more clear all of them generally running in these or the like words In absentia Regis or Quamdiu Rex fuerit in partibus transmarinis It is also to be granted that the King's will is many times subjoyned thereunto as if it were in him to displace them and place others in his absence yet do I find no Precedent of any such nature without the concurrence of the Lords or Parliament and yet that the Parliament hath ordered such things without his consent For when Richard the First passing to the Holy Land had left the Bishop of Ely to execute that place during his absence in remote parts the Lords finding the Bishop unfaithful in his Charge excluded him both from that place and Kingdom and made the King's Brother John Lord Warden in his stead But in the Case of the Protectorship which supposeth disability in the person of the King the same by common intendment is to continue during the King's disability and therefore in the Case of Henry the Sixth it was determined that the Protectorship doth Ipso facto cease at the King's Coronation because thereby the King is supposed able to govern although in later times it hath not so been holden For Kings have been capable of that Ceremony assoon as of the Title and yet commonly are supposed to be under the rule of necessity of Protectorship till they be Fourteen years of age or as the Case may be longer For although Henry the Sixth was once thought ripe when he was eight years old yet in the issue he proved scarce ripe for the Crown at his two and twentieth year Nevertheless the default of Age is not the onely incapacity of Kings they have infirmities as other men yea more dangerous than any other man which though an unpleasant Tune it be to harp upon yet it is a Theam that Nations sometimes are enforced to ruminate upon when God will give them Kings in his Wrath and give those also over to their own lusts in his Anger In such cases therefore this Nation sometimes have fled to the refuge of a Protector and seldom it is that they can determine for how long When Henry the Sixth was above Thirty years old Richard Duke of York was made Protector and Defender of the Realm and of the Church It was done if the Record saith true by the King himself Authoritate Parliamenti It was further provided by the Parliament that though this was to continue Quamdiu Regi placuerit yet the Duke should hold that place till the Kings Son Edward should come to years of discretion and shall declare that he will take that place upon himself The ground hereof is said to be that the King was Gravi infirmitate detentus which could not be intended of any bodily distemper for neither doth any such thing appear by any Author or Record Nor if such had been yet had it been an irrational thing in the Parliament to determine the same upon the Princes discretion and acceptance of the Charge upon himself It seemeth therefore that it was Gravis infirmitas Animi and that this way of the Parliament tended to a tacite sliding him out of the Government of the Kingdom by a moderate expression of a general incapacity in his person The Conclusion of all that hath been said concerning this Title is double One that both the Custos Regni and Protector are not subsistent but consistent with that of a King because it supposes a King under incapacity Secondly That they tend to teach the people a necessity of having one Chief although it may in truth seem to be but a trick of State like some pretty carved Cherubims in the Roof of a Building that do seem to bear it up whenas in truth it is the Pillars that support both it and them CHAP. XVI Concerning the Privy-Council NAtions do meet with their Exigences as well as persons and in such condition resolutions taken up by sudden conceit are many times more effectual than more mature deliberations which require more time in composing are more slow in conclusion let slip opportunities and fall short of expectation in the end Such are the ways of debate in the Grand Representative of the Kingdom Add hereunto that in putting the Laws in execution greater discretion is required than can enter into the head of any one man and greater speed than can stand with debate amongst many And therefore it is beyond all doubt that the Conventicles of Council are no less necessary in their degree than the Assembly of the Estates of this Nation in their Grand Convention Yet with this Caveat that one Genius may move in both for otherwise the motions of Government must needs be inconstant inconsistent and like that of an Hypocrite one way abroad another way at home neither comfortable to it self nor confiding to others And therefore cannot these Privateer-Councils by any proportion of Reason be better constituted than by the Representative it self that it may be a Creature made in its own Image one and the same with the Image of the maker This was the wisdom and the practice of these times more ordinarily than in the former for the Parliament was no less jealous of the power of Henry the Fourth than of the infirmities of Henry the Sixth nor more assured in the aims of any of them all than themselves were in in their own Title to the Crown Neither was this sufficient for the Parliament looked upon themselves as a body that sometimes must retire to rest and upon the Privy Council as Watch-men subject to change and therefore they not onely give them instructions but engage them unto observance Their instructions were sometimes occasional but some more general of which I shall instance onely in two which were to be of everlasting regard First That they should hold no pleas before them that is to say at the Council-Table or at the Privy Council nor before any of them unless as Judges in the Chancery Exchequer or Benches at Westminster so as whatsoever misscarriages were had by the Privy Council in Cases of Judicature in the Star-chamber formerly are now reduced The second rule was this That no dispatches should be made at the Council-Table of any matters there agitated but by general consent Unity gives life to Action carrying therewith both Authority and Power and when all is done must derive its original
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
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
seized till Conviction and Attainder first be had And because Escheators grew no less burthensome in their way it was therefore ordered that no man shall be allowed in such Office unless he hath Lands to the value of Twenty pounds per Annum and that he shall be responsible for such wrong done by himself or by his Deputy and Farmer Thus Edward the Fourth quitted himself like a King in many regards but soon ran himself out of breath gave his Lamp to his Son that was too weak to hold it a Third snatches it away and for two years carrying it exceeding well yielded up all encroached Royalty to the people and his Crown and Life to his Successor CHAP. XXV The condition of the Clergie IF any gains were had in these uncertain times the Church-men might seem to have them having now this advantage that the Commonalty was distracted with uncertain interests of the Succession of the Crown And themselves onely united under the Popedom now freed from all Schism and the Popedom managed by Sixtus the Fourth who had the hap to be accounted more virtuous than any of his Predecessors had been and to have all the Christian Princes wholly at his devotion And lastly Both the Clergie and the Kings were now joyntly engaged against the rising power of Religion then called Heresie in order whereunto the Clergie leading the way had the applause of them that followed upon an implicite Faith that whatsoever was done was exceeding well done Nor was it wisdom for Kings that sate loose in their Thrones to stumble the good Opinions of so considerable a party towards them And therefore Edward the Fourth in his first entrance granted to the Clergie that which could never be by them obtained from any of the foregoing Kings Viz. Free liberty of Process in all Cases Ecclesiastical and in Tythes of Wood above twenty years growth and in case they were troubled upon the Statutes of Provisors they should have their remedy in the Chancery against those Judges and their Proceedings in such Cases there to be cancelled This was done by Charter and was sufficient to shew what the desire of the Clergie and the intention of the King was Viz. At once to favour the Church and under colour of favour done to the Clergie to cancel both Common and Statute-Laws of the Kingdom by the power of the Chancellor's Decree Nevertheless all this was but the King's breath the policy changed never a whit the more For the Common Law held on its course not onely in Cases depending before the Holy Chair but also even before the Bishop of the Diocess at home so as neither the King was concluded from his Suit nor the party endamaged from his Action by any such Charter And so far were the Judges of the Common Law from being bound by the Chancery in such Cases that they professed they would not delay to grant the Habeas Corpus to deliver any Prisoner by Decree of the Chancellour in any Case triable at the Common Law. Much less did the Parliament favour these men so far as to give them any countenance in any way of gain upon themselves but rather made bold with what the Church-men in former times challenged as their own and upon this account whereas formerly it had inhibited Fairs and Markets upon the Lord's Day Now it inhibited the sale of Boots Shoes c. upon that day though done never so privately which they did at the first onely within the City of London and three miles thereof I suppose it was made onely by way of Trial it being dangerous in such times to give a stop to all England at once otherwise it might be wondered why God's Honour should be better regarded in London than in all the Realm besides Of this encroachment we find no complaint made by the Church-men another touched them to the quick although it befel onely the Arch-bishoprick of York that hitherto held ordinary Jurisdiction over all the Bishops of Scotland as being their Provincial Now it is disclaimed by them all and they are backed therein by their King under pretence of great inconvenience to his Bishops in their so far Travels but in truth not unlike to Jeroboam though he pretended it was too much for them yet he thought it unsafe for himself that his Bishops should owe Canonical obedience to the Subject of another Prince and upon this ground prevailed with Pope Sixtus the Fourth to make the Divorce and left it to future Ages to try the validity thereof if they would This is all that I shall observe of the Government of these three Kings whose Reigns in the whole exceeded not Twenty six years and their compleat power therein not much above half so many CHAP. XXVI A short sum of the Reigns of Henry the Seventh and Henry the Eighth THe course of English policie hitherto wandring in the different Currents springing from the double head of Monarchie and Democracie and in them likewise often tossed up and down partly by the blasts of windy Titles and pretensions and partly by the raging Tides from the Roman See now begin to come to anchor within view of Shore Happy England if the same prove good Harbourage for a fainting Nation Two Kings now undertake the Steerage the work of the first was to still the Winds the other the Seas and so to bring the Adventure safe home Henry the Seventh hapned upon a good preparative for this work in that he delivered the Kingdom from a Tyrant whose irregular and bloody way was so odious to the people that it set a foil upon his Successor's Government and made his Wisdom Valour and Justice appear greater than possibly it was His Valour made way for the other two he had enough thereof to serve a wise man in case of extremity at other times he made more use of his Majesty than Manhood being confident that the people knew not where to mend themselves but would be at his Devotion so long as he was better than his Predecessor though he cared not how little His Wisdom was his greatest part of which upon all occasions he made the greatest improvement he could without reflecting upon Conscience or Religion whereof he had tasted no more than would render him a civil man whereunto his Education did lead the way Thus though his Valour brought him to the Crown yet it was his Wisdom that setled him in the Throne For though he loved himself so well that he was loth to pretend allowance of any access of Foreign help to his own atchievement in his Title or that he was guilty in the least manner in his entry upon the Throne yet to keep danger far off he provided one guard for his Person and many for his Title That of his Person he onely pretended as a ceremony of State brought from the French Court and yet it is strange that it went so well down with a Free people For
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
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
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-Holy-Church Things
formerly bred by the Canon nourished by continual practice allowed by Ordinance of Parliament or Grant from Kings in Parliament are now confirmed by solemn concurrence of the whole Representative Body of the Kingdom to have and to hold with Warranty And yet the sence is not so general as the words nor doth it seem much other than a Confection made for the Arch-Bishops appetite to cure a distemper between him and the King for the Civil Judge lost nothing hereby nor would the Crown as may appear by a Law of equal Authority with the former for though an Executor or Administrator may cheat yet it tells us that Ordinaries only can oppress and extort from dead men and therefore in such cases doth provide remedy by enquiry and Indictment before the King's Justices They shall have Cognizance of Vsury during the Delinquent's Life and the King after the Delinquent's death The difference ariseth from the different end the first being to reform the Person by Church-censures and to urge him to restitution the latter is for the King 's Fine or Forfeiture For as touching the Usurer's estate the offence was in the nature of Felony forfeiting both Lands and Goods to the King after the Delinquent's death And it seemeth the manner was to Indict the Delinquent during his life and that stuck to him as a deadly Arrow in his side till he died Nor did it lie in the power of the Ordinary by Ecclesiastical censure so to reform the Ofâ—ender as to clear him to the King unless the party offending made his peace with the King by Composition And thus the Law continued for ought appeareth to me till the time of Henry the Eighth They shall have Cognizance of avoidance of Benefices of Right They shall certifie Bigamy and Bastardy had beyond the Sea and whether a Prior be perpetual or Dative The first of these concerning avoidance of Churches it seemeth was somewhat doubtful in point of practice for that the Civil Judge used to determine all manner of avoidances as well in Fact as of Right but by this Statute they are restrained only unto avoidances in Fact so as after this Statute it is holden that avoidances by death shall be tryed by the Countrey but if the avoidance be by Deprivation Resignation Creation or otherwise it shall be tryed by the Ordinary because by common intendment he is more conusant of the thing than Countrey-people But as touching the point of Bigamy the matter is more doubtful in regard that commonly the Marriage of a second Wife or Widow is a matter in Fact done in the face of the people and of which they take notice especially where the life of man is concerned which rather requireth the Judgment of his Peers than where the outward maintenance only is engaged Nevertheless because the main point is whether the party be a Clerk or not and the same anciently rested upon the Certificate of the Ordinary It is by this Law again allowed to him to try and certifie this point of Bigamy also although the Statute of Bigamists might seem to Entitle the Civil Magistrate thereto as the Law was holden to be before this Statute was made In the next place although it cannot be denyed but the Trial of Bastardy beyond the Sea might as well lie in the cognizance of the Lay-Magistrate as in that of the Ecclesiastical yet seeing the Clergy had already attained the cognizance of the thing the place proved but a matter of circumstance especially they having the advantage of the Civil Magistrate in this in regard that the Ecclesiastical persons beyond the Sea had also obtained the cognizance of that matter amongst themselves their Testimony or Certificate would come with more credit to the Clergy in this Kingdom than to the Magistrate whose cognizance in such cases they did disallow Lastly concerning Priories whereas some were presentative and filled by Induction from the Ordinary and others were Donative having their Priors meerly at the will of the Abbot to be placed and displaced as he thought most expedient If then the point in issue depends upon this knot this Law referreth the Trial unto the Ordinary who by common presumption best knows whether any Institution and Induction had passed his Registry and Seal or not And thus though a kind of Judicial power seemeth to be carried along herewith yet is all in a ministerial and subservient way unto the Civil Magistrate and nevertheless with such credit and authority that the main hinge of the Judicatory in such cases depends upon the dash of their pen. No Bishop nor Arch-Bishop shall be Impeached before the Civil Magistrate without the Kings express Warrant The former particulars concerned matter of Authority this and others ensuing concern matter of immunity which or most of which were formerly for a long time within the fancy of the Canon but never came to the height of Parliamentary approbation or Authority till now that it comes in as a peace-offering to pacifie the quarrel between the Arch-Bishop Stratford and the King. For he being engaged in the French Wars so resolved to continue and therefore to maintain distempers at home he held neither Honourable nor safe Their Temporalties shall not be wasted during the vacancy Nor shall they be seized but by Judgment of the Court. The first of these was an ancient Law grounded upon great reason although dulled by time and by covetousness of the needy Patrons next to laid aside if not quite put out of countenance So as a new Law must be made to revive it and to abolish that corrupt custom or practice of depredating those possessions given to a holy use in common supposal contrary to the trust by them undertaken and the use still continuing But the second Branch is in nature of a Law of Restraint set upon the Common-Law for the persons of these Spiritualized men were of so airy a constitution as they could not be holden by hands made out of the Clay such as the rude Laity were and therefore the Civil Magistrate upon all occasions used to lay hold upon that whereof there was some feeling which were called Temporalities and thereby drew them to appearance at the Lay-Courts for however Spiritual the Clergy were they would not easily part with their Lay-Fees But now by this Law the times are so attenuated that the very Temporalities are made so Spiritual as not to be medled with by the Lay-Magistrate unless upon judgment first obtained against them And suitably thereunto within twelve years following another Law was made more punctual That their Temporalties should not be seized upon for contempts but that their persons should be seized yet within twenty years after that this Law begins to be out of countenance and the Opinions of the Judges began to grow bold upon the ancient rule that their Temporalities were Temporal though their persons were Spiritual and that it was more dangerous to