law of Henry the first concerning the County court which reciteth it as a custome in his time used Ll. Hen. 1. c. 7. that the Bishop and Earles with other the chiefe men of that County were there present as assistants in directory of judgement And that in order are handled first matters of the Church Secondly Crown pleas Thirdly and lastly Common pleas however therefore the King spake faire they either acted not at all or so cooly as the current of the custome was too strong but most probable it is that the Kings spake faire till they were setled in their Thrones and afterwards pleased themselves for by the generall thred of story it may appeare that the Clergy in those times were more feared then loved and therefore riden with a streight reine The Prelacy on the contrary grew unruly yet too weake for the rugged spirits of the Norman Kings they are glad to be quiet and the Pope himselfe to drive faire and softly as judging it expedient potestatem Regalem mitius tractandam Greg epist l. 9. and continued that course and posture till the calmer times of Henry the first Eadmer hist l. 4 p. 95. wherein they mended their pace and got that without noyse which they had long striven for viz. the preeminence and presidency in the Synods though the King himselfe be present and if the Historian writeth advisedly the whole ordaining or legislative power for so runnes the stile or phrase of the author Archiepiscopi Episcopi statuerunt in praesentia Regis as if the presence of the King and his Barons and people were but as a great Amen at the common prayer after the old stampe to set a good colour upon a doubtfull matter to make it goe down the better How the Kings brooked this draught I cannot say but it hath made the kingdome stagger ever since and it may be feared will hardly recover its perfect wits so long as the brains of the Clergy and the Laity thus lie divided in severall Cels. CHAP. XLVIII Of the severall subservient jurisdictions by Provinces Marches Counties Hundreds Burroughs Lordships and Decennaries HAd the Normans owned no other title then that of Conquest doubtlesse their mother wit must needs have taught them the expediency of preserving the particular subservient jurisdictions of the kingdome intire and unquashed if they regarded either the benefit of their conquest or reward of their parteners and allies unlesse it should be allowed unto Conquerous to be more honourable for them to doe what they will rather then what is meet But hereof there is no cause of queston in this present subject for nothing is more cleare then that VVales enjoyed in the Conquerours time and for ages after him its ancient liberties Tribute excepted nor did conquest ever come so nigh to their borders as to trench upon the liberties of the Marches For as it had been a piece of state nonsence to have holden two peoples under conquest and their Marches in freedome or to preserve them in good neighbourhood by Marches which by the law of Conquest were made one so was it no lesse vaine if all had been once subdued by conquest to have raised up the liberties of the Marches any more And as they had lesse cause to have invaded the bounds and ancient limits and partitions of the Counties County courts so questionlesse had they so done they would have taken the old course of the Micklemote Eadmer hist l. 4. p. 96. as they did divide the Diocesse of Lincolne into two Diocesses by advice of the Bishops Princes and other wise and holy men Ll. Hen. 1. c. 6. and turned the Abby of Ely into a Bishops See But it was their wisdome to preserve the ancient Land-marks and no lesse both wisdome and care to continue their due priviledges and interests to each Every County had its Court Ll. Gulielm cap. 41. 42. and every Court its wonted jurisdiction No complaint must be to the Kings Court if right may be done in the County no distresse must be taken but by warrant from the County and that must be after complaint thrice made The County court must be called as our ancestors have appointed Ll. Gulielm cap. 64. such as will not come as they ought shall be first summoned and in case of default destrained at the fourth default the complainant shall be satisfied out of the distresses so taken and the King also for his fine These are the expresse Laws of the Conquerours own establishment Ibid. c. 64. the last of which also was confirmed by another expresse Law saving that he would allow but of two summons and two distresses before execution And as it was one principall worke that he undertooke to reduce the Lawes into course which had been intermitted during the violent times of his father and brother the first of whom never had liberty for reformation and the latter never had will so amongst other Laws he setled those concerning the County court Ll. Hen. 1. c. 7. namely That the Bishops Earles and chiefe men should be present for direction 2. That it should be holden once each moneth 3. That the Church matters should precede and then the Crown pleas And lastly the Common pleas besides some other particulars concerning pleading and proceedings in the handling of causes Neither were these causes of a petty regard onely but of greatest concernment One example I shall remember the reader of Epicil 197. and not recite in terminis but referre to Mr Seldens own pen. The occasion was this Odo the Conquerours halfe brother was by him made Earle of Kent and therewith had the gift of a large Teritory in Kent and taking advantage of the Kings displeasure at the Archbishop of Canterbury Stigand possessed himselfe by disseisin of divers Lands and Tenements belonging to that See Lanfrank the succeeding Archbishop being informed hereof petitioned to the King that justice might be done him secundum legem terrae And the King sends forth his Writ to summon a County court the debate lasted three daies before the free men of the County of Kent in the presence of many chiefe men Bishops and Lords and others skilfull in the Laws and the judgement passed for the Archbishop Lanfrank upon the votes of the free men This County court was holden by speciall summons and not by adjournment as was allowable by the Saxon Law upon speciall occasions And this suit was originally begun and had its finall determination in the County court and not brought by a Tolt out of the Hundred court as is supposed by an Honourable reporter nor by the ancient laws could the suite commence in the Hundred because the Lands and Tenements did lie in severall hundreds and Counties The upshot of all is that the County courts in those daies were of so great esteem that two of the greatest Peeres of the Realme one a Norman the other an Italian did cast a title
this day hold the last in custome to all intents whatsoever The last branch provideth the remedy to recover to the heire his possession in case it be detained either through doubtfulnesse of age of the heire or his title and it directs the issue to be tried by twelve men This triall some have thought to be of Glanvils invention and it may well be that this triall of this matter as thus set down was directed by him yet he useth often in his booke the word solet and in his preface saith that he will set down frequentius usitata and its past question but that the triall by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the widdow of the tenant whose dower is not onely provided for but her reasonable part of her husbands personall estate The originall hereof was from the Normans and it was as popular as that of Wardships was Regall and so they made the English women as sure to them as they were sure of their children The Justices shall by Assize try disseisins done since the Kings 10. comming over Sea next after the peace made between him and his sonne This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that worke which formerly belonged to the County courts Glanv lib. 13. cap. 33. and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the writ is from the Kings last voyage or going into Normandy Justices shall doe right upon the Kings writ for halfe a 11. Knights fee and under unlesse in cases of difficulty which are to be referred to the King The Justices itinerant ended the smaller matters in their circuits the other were reserved to the King in his bench Justices shall inquire of Escheates Lands Churches and 12. women in the Kings gift And of Castle guard who how much and where So as the Judges itinerant had the worke of Escheators and made their circuits serve as well for the Kings profit as Justice to the subjects They used also to take fealty of the people to the King at one certaine time of the yeere and to demand homage also These matters of the Kings Exchequer made the presence of the Judges lesse acceptable and it may be occasioned some kind of oppression And as touching Castleguard it was a tenure in great use in these bloody times and yet it seemeth they used to take rent instead of the personall service else had that enquiry how much been improper 13. Of a tenants holding and of severall Lords That one man may hold severall lands of severall Lords and so owe service to them all is so common as nothing can be more neverthelesse it will not be altogether out of the way to touch somewhat upon the nature of this mutuall relation between Lord and Tenant in generall that the true nature of the diversity may more fully appeare The foundation or subject of service was a piece of land or other tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the tenant undertooke to performe service to the Lord Glanv lib. 9. cap. 4. and the Lord undertooke protection of the tenant in his right to that tenement The service was first by promise solemnly bound either by oath which the Lord or his deputy by the common law hath power to administer as in the case of fealty in which the tenant bound himselfe to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the tenement so given or otherwise by the tenants humble acknowledgement and promise not onely to performe the services due but even to be devoted to the Lords service to honour him and to adventure limbe and life and to be true and faithfull to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to each For though it be true that by promise of being the Lords man a generall service may seem to be implied yet in regard that it is upon occasion onely of that present tenure it seemeth to me that it is to be restrained onely to those particular services which belong to that tenement and therefore if that tenement be holden in soccage although the tenant be bound to homage yet that homage ties not the tenant to the service of a Knight Lit. lib. 2. cap. 5 nor contrarily doth the homage of a tenant in Knight service tie him to that of socage upon the command of his Lord though he professeth himselfe to be his man Nor doth the tenants homage binde him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for severall tenements Glanv lib. 9. cap. 1. Lib. 7. cap. 10. and these two Lords be in warre one against the other the tenant must serve his chiefe Lord of whom the capitall house is holden or that Lord which was his by priority who may be called the chiefe Lord because having first received homage he received it absolutely from his tenant but all other Lords receive homage of such tenant with a saving of the tenants faith made to other Lords and to the King who in order to the publique had power to command a tenant into warre against his own Lord. If therefore he be commanded by the King in such cases unto warre he need not question the point of forfeiture Glanvil lib. 9. cap. 1. but if he be commanded by a chiefe of his other Lords into warre against a party in which another of his Lords is engaged his safest way is to enter upon the worke because of his allegiancc to that Lord yet with a salvo of his fealty to that other Lord. Ibid. cap. 4. But in all ordinary cases tenants and Lords must have regard to their stipulation for otherwise if either breake the other is discharged for ever and if the fault be in the tenant his tenement escheats to his Lord and if the Lord faile he loses his tenure and the tenant might thence forth disclaime and hold over for ever Neverthelesse the Lords had two priviledges by common custome belonging to their tenures which although not mentioned in the stipulation were yet more valuable then all the rest the one concerning matter of profit the other of power That of profit consisted in ayds and reliefe The ayds were of three kinds Ibid. c. 8. one to make the Lords eldest sonne Knight the other to marry his eldest daughter the third to helpe him to pay a reliefe to his Lord Paramont which in my opinion
which not onely the people but also the King must submit The like whereunto Ina the great Saxon King also Ll. Inae Lamb. No great man saith he nor any other in the whole Kingdome 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 Abbats Dukes Miror cap. 1. sect 2. and other Nobles came and elected him to be their King and sware fealty unto him and he againe sware to them that Secundum Deum secundum seculum c. viz. according to the Lawes of God and of the Nation he would be a faithfull Lord to them Wigortn An. 1016. It s probable I grant that the praecipuum Sacramentum formerly mentioned was in the first nature more personall for the defence of the person of their leader whiles he was their Captain because it much concerned the good of the Army and without whom all must scatter and bring all to ruine and this the words of the Historian doe evidence But the safety of the whole people depended not on him after the warre 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 mannage the worke and therefore the fealty that the people sware to their King was not so absolutely determined upon their persons otherwise then in order to the publique weale as may appeare from the Lawes of the Confessor who was within thirty yeeres after the reigne of Aethelstan formerly mentioned The words in English run thus All the people in their Folkmote shall confederate themselves as sworn bretheren to defend the Kingdome against strangers and enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulnesse and that within and without the Kingdom of Britaine they will be faithfull to him as to their Lord and King So as t is evident the Saxons fealty to their King was subservient to the publique safty and the publique safety is necessarily dependant upon the liberty of the Lawes Nor was it to be expected that the Saxons would endure a King above this pitch For those parts of Germany whence they came that had the Regiment of Kings which these had not yet used they their Kings in no other manner then as servants of State in sending them as Embassadours and Captaines Tacitus as if they claimed more interest in him then he in them and the Historian saith expresly that amongst those people in Germany that had Kings their Kings had a defined power and were not supra libertatem And this maxime of State became afterwards priviledged by Sanctuary for by the growth of Antichrist not only the Clergy but even their tenants and retainers were exempt from reach of Kings even by their own concession allowed of a Law that cut the throat of their indefined prerogative Ll. Sax. Ed. cap. 17. viz. That if the King defend not his people and especially Church-men from injury nec nomen Regis in eo constabit verum nomen Regis perdit Which Law however it might passe for currant Divinity in those daies yet its strange it should get into a publique act of State Nor was this a dead word M. Westm An. 756 758. Wigorn. An. 755. for the people had formerly a tricke of deposing their Kings when they saw him peep above the ordinary reach and this was an easie work for them to doe where ever neighbouring Princes of their own Nation watched for the windfals of Crowns This made the Monarchicall Crown in this Land to walke circuit into all parts of the Countrey to finde heads fit to weare it selfe untill the Norman times Thirdly the Saxons had so hammered their Kings in their elections and made him so properly their own as they claimed an interest not onely in the person of their Kings but also in their estates so as in some respects they were scarcely sui juris For King Baldred had given the Mannor of Malings in Sussex to Christchurch in Canterbury and because the Lords consented not thereto Concil Brit. 340. it was revoked and King Egbert afterwards made a new grant by advice of the Lords which shewes that the Demesnes of the Crown were holden sacred and not to be disposed of to any other use though pious without the consent of the Lords and herewith concurre all the Saxon infeodations attested and confirmed by Bishops Abbots Dukes and others of the Nobility under their severall hands Neverthelesse Kings were not then like unto plumed Eagles exposed to the charity of the Foules for food but had a royall maintenance suitable to their Majesty their power was double one as a Captaine other as a King the first was first and made way for the second as Captaine their power was to lead the army punish according to demerits and according to laws and reward according to discretion As Captaine they had by ancient custome the whole spoile left to their ordering by permission of the army Tacitus Exigunt Principis liberalitate illum Bellatorem equum illam cruentam victricem frameam and they were not wont in such cases to be close handed per bella raptus munificentiae materia the spoiles in these wasted parts of Germany bring little other then horses and armes But after they came into Britaine the change of soile made them more fat Horses and Armes were turned into Towns Houses Lands and Cattell and these were distributed as spoils amongst the Saxon souldiers by their Generals and this redounded to the maintenance of the State and port of the great men who were wont to be honoured non stipendiis sed muneribus Tacitus and the people used ultro viritum conferre principibus vel armentorum vel frugum aliquid but now upon the distribution of conquered Towns Houses Lands and Cattell in Britaine a yeerly product of victuals or other service was reserved and allowed to the Saxon kings by the people as the people allowed to Joshua his Land Jos 19.49 so as they needed no longer the former course of Offerings but had enough to maintaine their Royall port and great superfluity of Demesnes besides as their charity to the Church men does sufficiently evidence and by this meanes all the Lands in England became mediately or immediately holden of the Crown and a setled maintenance annexed to the same besides the casuall profits upon emergencies or perquisites of fellons or fugitives goods mines of Gold and Silver treasure trove mulcts for offences Miror 101 298 Ll. Edw. cap. 14 and other priviledges which being originally in the kings were by them granted and made Royalties in the hands of subjects as at this day To the increase of Majesty and maintenance there was an
estate if the sale be not effectuall and in case the vendor have no warrant for such goods by him sold No living Cattell shall be sold but onely in Cities Ll. Gulielm cap. 60. and before three witnesses nor shall any thing forbidden be sold without warranty No faires or markets shall be holden but onely in Cities Ibid. c. 61. Burroughs walled Towns and Castles These Lawes concerning sales and markets were ancient Saxon lawes and tend all to the avoyding of cheating men of their Cattell by surreptitious sale of them made by such as had no right Goods found shall be published by the finder to the neighbourhood Ll. Gulielm cap. 7. and if any makes claime and proofe of them to be his he shall have them giving security to bring them into the Court in case any other shall within a yeere and a day make his claim thereto The children of persons intestate shall equally divide the heritage Ll. Gulielm cap. 36. This is in terminis the Saxon law and therefore concerning it I shall referre to the same formerly recited onely I shall adde hereto the law of Henry the first Ll. Hen. I which may serve as an explanation of the former Any free man may devise his chattels by will and if he die intestate his wife children parents or next kinne shall divide the same for his soules good The first branch whereof was ancient and doubtlesse in continuall use but the iniquity of the Norman rude times was such that the Lords under surmise of arreares or reliefe would seise all the personall estate after the tenants death and so the right of last wils was swallowed up but this restoreth the power of last wils into its place and in case the party died intestate preserveth a kind of nature of descent although they be more personall Nor doth that last clause of the soules good disannull the same although the words may seem to carry away the benefit to some other hand For the whole matter is left to the discretion of such as are next to the intestate CHAP. LII Of Laws that concerne common interest of Lands THe Laws that concerne Lands and peculiarly belonging to the Normans are such as concerne principally the tenure of Lands which if duly considered although savoured somewhat of the King yet little of the Conquerour for generally it must be granted that tenures long before and after this time were as the services ordered according to the will of the giver in which as the King had the greatest share and he the most publique person of all so were his donations ordered chiefly to advance the publique service and in this regard the tenure by Knight service might more principally challenge the Kings regard then the regard of all the great men besides But this was not the soare yea rather it was the beauty and strength of the Kingdome and for which the King deserved an honorable name above most of his progenitors who had not so much land to dispose of as he had and therefore could not advance that service in any proportion equall unto him The sore that caused so many sighes was the incumbrances raised upon this most Noble and free service which through the evill of times by this meanes became the most burthensome and the onely loathed and abhorred service of all the rest I say through the evill of times for it cannot lodge in my thoughts but in the Norman times the incumbrances were nothing so great as of latter ages and that much hath been imputed to the Lawes of the Conquerour which they never deserved as may appeare in these particulars which the Laws of Henry the first have preserved in memory Tenant of the King or other Lord dying 1 Reliefe M. Paris An. 1100 1213 his heire shall pay no other reliefe then what by Law is due That which by Law is due is set down in the laws of William the Conquerour The Reliefe of an Earle Ll. Gulielm cap. 12. 8. Horses sadled and bridled 4. Helmets 4. Cotes of Maile 4. Shields 4. Speares 4. Swords 4. Chasers bridled and sadled 1. Palfray bridled and sadled The Reliefe of a Baron Ibid. c. 23. 4. Horses with Saddles Bridles 2. Helmets 2. Cotes of Maile 2. Sheilds 2. Speares 2. Swords 2. Chasers bridled and sadled 1. Palfray bridled and sadled The Reliefe of a Vavasor to his Lord Ibid. c. 24. His best Horse His Helmet His Cote of Maile His Shield His Speare His Sword Or if he had no Armes then he was to pay s. 100 The reliefe of the Countrey man is the best beast that is in his possession Ll. Gulielm cap. 29. and of him that farmeth his Lands a yeeres rent These are the Reliefes due by law and now setled in goods or armes but afterwards turned into money and its likely that the ill customes in the former times did extort both money and armes or such summes of money as they pleased and by the very words of the law it seemes they had brought it to an arbitrary power to take what they could get and yet all against Law 2. Marriage The Kings tenant shall advise with the King in marriage of his daughter sister neece or kinswoman and his widdow in like manner The sence hereof in short is that these might marry at their own will without paying fine or composition to the Lord and yet must have the liking of the Lord so farre as to declare whether the man intended were his enemy or not and fit to performe Knight service This law was therefore grounded upon the present distresse of affaires wherein the nation was unsetled and common right having established a mutuall trust between Lord and Tenant found out this meanes to preserve the same for if the marriages of those that are related to the Tenant in such manner as may inherit part or 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 mutuall trust between Lord and Tenant must faile and the publique receive dammage And therefore if this custome were of Norman birth it was begotten bpon a Saxon law and might the rather be owned by the English 3. Dower The widdow of the Kings 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 custome when as 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 custome 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 worke in hand to disclaime that custome 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 appeare hereafter And what could be imagined a more ready way to stay the effusion of blood and all other unhappy events of enmity then by taking away enmity it selfe or a more speedy and certaine course for union then to reduce the men and women of each people to mutuall society and to seale up all by a lasting bond of marriage or greater encouragement for the comfortable proceedings therein then 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 Lindenbrog Concil Aenham c. 19. Ll. Edm. 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 widdowhood 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 widdows 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 curtesie Miror fo 20. and however by the Norman former practise it was much disturbed yet by Henry the first it was again reduced to its former right rather then originall arising from his grant as some hold and proved advantagious 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 untill the more ancient Saxon law had an honourable buriall Neverthelesse for the present the law abridged that right so farre as to limit it to the widdow during widdowhood 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 widdows and wards was not so much an usurpation upon the common right of the English subjects as a custome rationally and with great wisdome as the course of affaires 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 yeeres which cost their ancestors nigh two hundred yeeres experience with the Britons besides a world of bloodshed that might have been spared ere they could finde out the right way to a desired peace by mutuall marriages had between them cap. 4. 4. Wardship Such widdow 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 custome of the Normans M. Paris and thereby the injustas consuetudines quibus Angliae regnum opprimebatur viz. Arbitrary reliefe taken of the Tenants estate arbitrary marriages made of their persons 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 inlaw whether man or woman wise or unwife under pretence to train him up in military service fit for the Lords own safety and the Kingdomes lifeguard but it was the proper ground of the Lords 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 worke so as might be most advantagious to the publique which seemed to be chiefly concerned herein and upon the same generall ground the survey of fooles accompanied the former albeit it was not in practise till Henry the first brought it in as the Mirror of justice saith fo 258. Ll. Canut 37. 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 custome 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 traine them up for the publique service in point of war especially being possessors of a known right of reliefe as well as Alfred the Saxon King did undertake the worke for the training of some such particular persons in learning for the service of the publique Asser Menev. in time of peace and civill government yet thus much appeareth that guardianship of Lands was a known custome enough to make and maintaine a right and that it by law was a right belonging to some persons before others and that this had been a custome before the former unjust customs crept into government of the Conquerour and principally of his sonne Rufus and though it be questionable whether it setled first upon the Normans or the English yet its manifest that if one people had it the other people now comming into union with that people could not in reason except against that custome which the other people had taken up upon so honorable grounds as reason of State which as the times then were was evident and superlative especially the customes being under the regulating of Law and not of any arbitrary power and can be no presidents of the reliefe marriage and wardship that after ages usurped Tenants in Knights service shall hold their Lands cap. 5. c. acquitted of all taxes 5. Acquittall that they may be more able to provide Armes and be more ready and fit for the Kings service and defence of the Kingdome This law whither it be a renewing of a former custome or an introduction of a new Law it s cleare it was upon an old ground That Tenants by Knight service must be ready for the service of their Lord and defence of the kingdome 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 Kingdome which must be
rules for government I remember it s affirmed by some of those ancient Writers that the Duke or King would have brought in the customes of Norwey but the earnest mediation of the English prevailed against it and it evinceth two things to my opinion first that there was question made what law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdome they could not prevaile to bring in the whole body of their law or of the customes of Norwey which were not onely the prima materia of their law but also in kind had a setling at that very time in those places of this Kingdome where the Danes had their principall seate and therefore not altogether strange to the Saxons themselves The summe of which will be this that upon debate a law must be setled and that not the law of the Conquerours own will nor the law that suits with his desire but the ancient law of the Kingdome and therefore if at any time the unquietnesse of some of the English brought the King to some thoughts of arbitrary rule and to shake off the clog of Saxon law it was long ere it stirred and sprang up too late to raise the title of conquest and withered too soon to settle it As touching the change of customes for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour tooke away the custome of Gavell kinde and brought the custome of discent to the eldest sonne and that Kent saved their liberties and continued this custome of Gavell kinde I shall not contend about the liberties of Kent but must till I see better reason hold the opinion of the change of inheritance to be a meere conceit For besides what hath been already said concerning that custome of Gavell kind if we believe Glanvile the difference was between Lands holden by Knights service Lib. 7. cap. 3. and in socage the first of which in his time by ancient custome alwaies descended to the eldest and those Lands that were holden in Socage if not partible by custome in which case they went equally to all the sonnes went by custome in some places to the eldest in other places to the youngest so as the rule of inheritance in the Norman times was custome as well as in former times And furthermore if the custome of Gavell kind had been the generall custome of this Nation the King by his change had contradicted his own Prerogative and granted as great a liberty to his subjects as could have been invented For had the custome of Gavell kind happened upon the Lands in Knight service it had brought all the sonnes under the law of Wardship and had made a ready way to inthrall all men of worth and undoe all husbandry the first whereof had been as advantagious to the Kings private interest as both destructive to the publique Nor is it cleare from any Authour of credit that the Normans changed the tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what tenure he pleased for as well before the Normans time as long after tenures were like as the services were all at the will of the donor and were of as many individuals almost as the minds of the owners some being of more generall regard and publique use Littlet are recorded amongst the grounds of English laws none of which appeare to me to be of Norman originall although they received their names according to that dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute tyrant and to publish laws in a forreigne language that the people through ignorance might the rather transgresse and thereby forfeit their estates This if true so far differed from the nature of a Conquerour as rather proveth that he was put to his shifts Neverthelesse the thing tasteth so much of spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conquerour to entitle himselfe by a cheat where he hath an elder title by conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continuall view of publique affaires in those times who speaking of the Conquerour saith That he commended the Confessors laws to his Justices in the same Language wherein they were wonted formerly to be written Ingulfus lest through ignorance the people might rashly offend And another Authour saith M. Paris fragm Gulielm that the King had a desire to learn the English tongue that he might the better know their Law and judge according thereto It s probable neverthelesse that the laws were in the Norman tongue and it s no lesse likely that the pleadings in reall actions especially were also in the same Language else must the Normans be put to schoole to learne English upon perill of losse of their estates but that either the written laws were wholy concluded into the Norman Tongue or that the publique pleading of causes by word of mouth in all actions where the issue was left to the Countrey were in any other Language then English no advised Reader will conceive seeing it had been a madnesse for an English Jury to passe their verdict in any case wherein its likely many of them understood scarce a syllable of the Norman language much lesse ought of the matter upon which their verdict should be grounded Adde hereunto that it s not likely but the Conquerour inhibited the use of the English language in all matters of publique Record in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon more generally in the Latine but seldome or never in the Norman dialect and that pleadings and indictments were entered in like manner in the Latine Tongue as formerly by an old custome brought in by the Clergy was used for the Clergy who had gotten the Key of knowledge and Law into their own custody layd it up in that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for justice as well as for piety The Normans therefore either found it too hard to alter the former custome in such cases or else thought it the wisest way to choose the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any forreine Tongue besides and yet endeavoured to bring both peoples into one Language as they were intended to be one people and to presse the use of the Norman Tongue in publique affaires so farre as might consist with good government and justice leaving
the Clergymens then his Richard was yet a greater burden his reigne was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his father be blotted out but it was more troublesome to the people because it cost so much treasure was mannaged by such ill governours except the Archbishop of Canterbury and was unsuccesfull in most of his undertakings yet never invaded the liberties of the Commons by any face of prerogative But what wanted in him was made compleat and running over in his successor John who to speake in the most moderate sence of his government being given over to himselfe when he was not himselfe robbed the Lords of their authority bereaved the Church of its rights trode under foot the liberties of the people wasted his own Prerogative and having brought all things into dispaire comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regaine and Iohn could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gaine where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant government such as all men might learne which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in government is the law and the execution the latter being the life of the former and that of the Common-weale I say not that the law was augmented in the body of it or that the execution had a freer course then in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousnesse for the first whereof we are beholding to Glanvile in Henry the seconds time and for the latter to King Iohn or rather the Barons in his time in the publishing of the grand Charter or an enumeration of the liberties or customes of the people derived from the Saxons revived continued and confirmed by the Normans and their successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King Iohn soon repented of his oath the bond of his consent and to heale the wound got the Popes pardon and blessing thereupon so easie a thing it was for a sonne of the Roman Church to passe for a good catholique in an unrighteous way The execution of the Law was done in severall Courts according to the severall kinds of affaires whereof some concerned matters of crime penalty and this touched the Kings honour and safety of the persons of himselfe and his subjects and therefore are said to be contra coronam dignitatem c. The second sort concerne the profits of the Crown or treasure of the Kingdome The third concerne the safety of the estates of the people These three works were appointed unto three severall Courts who had their severall Judges especially appointed to that worke Originally they were in one viz. in the supream Court of Judicature the court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of severall men that were men of skil in such affaires and yet retained the Supremacy in all such causes still And because that which concerned the publique treasure was of more publique regard then the other the deputation thereof was cōmitted probably to some of their own members Gloss who in those daies were Barons of the Realm and afterwards retained the title but not the degree and therefore were called for distinction sake Barons of the Exchequer The particular times of these deputations appeare not clearly out of any monument of antiquity neverthelesse it s cleare to me that it was before Henry the seconds time as well because Henry the first had his Judex fiscalis Ll. Hen. 1. c 24. as Glanvile so frequently toucheth upon the Kings court of pleas which cannot be intended at the court of Lords for that in those daies was never summoned but in time of Parliament or some other speciall occasion but more principally because the Historian speaking of the Judges itinerant reciteth some to be of the common pleas Hoveden which sheweth that there was in those daies a distinction of jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advise of the Parliament after that the grand councell of Lords was laid aside by Kings and a Privy councell taken up unto whom could not regularly belong any juridicall power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime title of chiefe Justice who then was called Lord chiefe Justice of England and whose Office was much of the nature of the Kings Lieutenant in all causes and places as well in warre as peace and sometimes was appointed to one part of the Kingdome and by reason thereof had the name onely of that part and some other of the other parts The greatnesse of this office was such as the man for necessity of state was continually resident at the Court and by this means the Kings court was much attended by all sorts of persons which proved in after times as grievous to the King as it was burdensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergy as were also the under Officers of those courts for those times were Romes houre and the power of darknesse Other Courts also were in the countrey and were Vicontiel or Cours of Sheriffs and Lords of Hundreds and corporations and Lordships as formerly and these were setled in some place Hoveden but others there were which werr itinerant over which certaine Judges presided which were elected by the grand councell of Lords and sent by commission from King Henry the second throughout the Kingdome then devided into six circuits unto each of which was assigned three Justices so as the whole number of Justices then was eighteen The Office was before the comming of the Saxons over hither but the assignation was new as also was their oath for they were sworne But the number continued not long for within foure yeeres the King redivided the land into foure circuits and unto each circuit assigned five Justices making in the whole the number of twenty and one Justices for the Northern circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdome Hoveden 337. Ibid. 445. Neither yet did the first commission continue so long
common law and Kings prerogative would agree thereto The complaints are of this natures 1. That the Church-possessions in their vacances are wasted and that Escheators doe not onely seise the personall estate of the Abbot or Prior deceased but such Corne in the barne and other goods belonging to the houses for their maintenance as also the profits of Churches impropriate 2. 3 4 5. Elections are either disturbed by the Kings Letters praeceding or by delay of the Royall assent subsequent the said elections 6. The Lay power without the advice of the Clergy doe put in eject or restore incumbents to Benefices voyd 7. Prelates are summoned to answer to the Lay power in the Writs Quare excommunicavit and Quare non admisit 8. Clerks are distrained in their Lay fees to answer before the Lay power in action of debts trespasse or other personall actions and in case they have no Lay fees the ordinary is distrained by his Barony to cause the Clerke to appeare 9. The Laity are forbidden to take oath or to inform upon oath before the Prelates and to obey Prelates commands in such cases 10. Persons taken and imprisoned upon excommunication are ordinarily dismist without satisfaction unto the Prelate and sometimes are not taken by the Sheriffe 11. 12. 33. 13. notwithstanding the Kings Writ and as well the King as his Officers doe ordinarily communicate with such as are excommunicated and likewise command others to communicate with them 14. Clerks imprisoned for felony are refused to be delivered to the Ordinary unlesse upon security to appeare before the Justices in Oyer 15. and sometimes are hanged before their Ordinary can demand them and sometimes their heads are all shaven that they may not appeare to be Clerks 16. Justices itinerant doe imprison Clerks defamed for felony or otherwise outlaw them if they doe not appeare And otherwise proceed against Clerks after their purgation before the ordinary 17. 18. The Lay power seises upon the estates of Clerks degraded for crimes 19. Clergy are compelled to answer and give satisfaction for offences against the forrest laws 20. before the Lay power And in case of default the Bishop by distresse is compelled to order satisfaction 21. as well in such cases as in person all actions 22. Priviledges of Sanctuary are invaded by force 23. Executors of Bishops are hindred from administring the estate without licence first obtained from the King 24. The Kings tenants goods are seised after their decease by the Kings Bailiffs 25. Intestates goods are seised by their Lords and their Ordinary hindred from administration 26. The Kings 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 Churchyards 28. pecuniary punishment for Adultery 40. 29. and costs of suit in Ecclesiasticall court sacriledge excommunication for breach of the liberties of the Church contrary to the grand Charter 30. In cases of prohibition if the Ecclesiasticall 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 temporall the Ecclesiasticall Judge is amerced if he proceed against the prohibition and it s tried by witnesses of two ribaulds and in case it be found for the Ecclesiasticall Judges cognisance 31. yet there is no costs allowed for such vexation 32. That Jewes in matters Ecclesiasticall aforesaid are by the Kings prohibition drawn from the Ecclesiasticall Judge unto the Lay Magistrate 34. Question about Lands given in Frankalmoine are tried in the Lay courts 35. 36. 37. 38. and by reason of such tenure the owners though Clergy men are compelled to doe suite at the Lay courts and are charged with impositions and are distrained hereunto although the Lord have other Land of the Donor in Frankallmoine subject to his distresse 39. Prelates summoned to higher Courts are not allowed to make atturnies to appeare for them in the inferior civill courts 41. Grantees of murage or other unwonted impositions compell the Churchmen to pay the same 42 43. The Clergy 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 Councell of the kingdome Princes and Prelates 45. The King doth compell the Clergy to benevolences to the King at his voyage into forraine parts 46. Amercements granted to Clergy men are turned into fines by the Justices and by them taken 47. Clergy men are fined for want of appearance before the Justices itinerant and of the Forest upon common summons 48. Quo warrantoes granted against the Clergy for their liberties and the same seised unlesse they be set down in expresse words in their Charter 49. 50. notwithstanding that by long custome they have enjoyed the same and many times contrary to expresse grant This is the summe of their paper of grievances and because they found the King either wilfull or unconstant they resolve upon a remedy of their own by excommunication and interdiction not sparing the persons of any principall or accessory nor their Lands no not of the King himselfe 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 Satatutes the first spake faire and seemed to redresse 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 Abbats Priors and Prelates Marlbr c. 29. c. shall have an action of trespasse for trespasses done nigh before the death of their predecessors 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 seised This might seem a remedy provided against the first malady complained of and questionlesse 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 Popes cunning to help on that worke that they might be as stores for supply of his treasury and had forbidden Abbats and other Prelates c. the liberty of disposing their estates by last Will. Kings therefore as supreame patrons to these bodies in their vacances used to seise all the estates of the Prelates with the temporalties to their own use as well to preserve the riches of the kingdome to it selfe and the possessions of such Corporations from spoile as to be a cloke of their own covetousnesse And under the estates of the Prelates or heads of these Corporations all the
should be troubled with every such occasion and therefore the giving of advise to William the Conqueror what course he should take to settle the Lawes of England according to the instances in Councills holden An 1060. And 1070. And to gaine favour of the great men according to that in An 1106. and in the manner of endowment of the Abby of Battell as in pag 25. of the Opponents discourse and what to do upon the reading of the Popes Letter according to that in An 1114. And whether the Popes Legate should be admitted as in pag. 18. And how King Steven and Henry shall come to agreement as An 1153. And how to execute Lawes by Judges and Justices Itinerant as An 1176. And touching the manner of ingageing for a voyage by Croisado to Jerusalem An 1189. And to give answer to Embassadors of a forraine Prince pag. 25. And how King John shall conclude peace with the Pope An 1213. Where neverthelesse Math. Paris saith Pag. 23. was Turba multa nimis I say all these might well be done by a Councell of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appeare but that the Commons might be present in every one or many of them all Secondly as touching judicature the Lords had much power therein even in the Saxon times haveing better opportunites for Knowledge and Learning especially joyned with the Clergy then the Commons in those times of deep darknesse wherein even the Clergy wanted not their share as in the first part of the discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of judicature is inferiour to the regard of the Parliament and therefore the Plea between the Arch-Bishop and Aethelstan concerning Land instanced An 1070. And betweene Lanfranke and Odo An 1071. and betweene the King and Anselme pag 15 16. and the determining of Treason of John afterwards King against his Lord and King Richard pag 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appeare and therefore can these forme no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A third worke whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because hee findeth many things by them concluded touching the solemnization and the settling of the succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the election or Solemnization of such election a proper worke of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus page 16. will faile or the Opponents principles who will have no Parliament without a King The like may also be sayde of the instance concerning King Steven page 18. Much lesse can the solemnization of the election by Coronation be a proper worke for the Parliament Neverthelesse the Opponent doth well know that both the election of a King and the solemnization of such election by Coronation are Spiritlesse motions without the presence of the people and therefore though his instance page 17. concerning the election of Henry the First by the Bishops and Princes may seeme to be restrictive as to them yet it is not such in fact if Matthew Paris may be beleeved Mr. Seldens Title of Honor. who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A fourth sort of Instances concerneth matters Ecclesiasticall and making of Canons and hereof enough hath been already sayd that such worke was absolutely challenged by the Church-motes as their proper worke and therefore the Instance page 16 17. of the Councill in Henry the firsts time and the Canons made by the Bishops there and that other called by Theobald Arch-Bishop of Canterbury and instanced by the Opponent page 19. I say both these doe faile in the conclusion propounded Fifthly As touching the most proper worke of Parliaments which is the making of Lawes concerning the liberties and benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to his proposall for as touching those two instances in his thirteenth page Anno 1060. they concerne not the making of Lawes but the reviving of such as had been difused formerly which might well enough be done by private Councell But as to that in his fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincolne although it be true that wee finde not the particular titles of Knights Citizens and Burgesses yet besides the Councill of Arch-Bishops Bishops Abbats and Princes we finde the Common Councill for so the words are Communi Concilio Concilio Archiepiscopus Episcopus Abatus omnium Principum although the Opponent would seeme to wave these words Et Concilio but putting them in a small Character and the rest in a voluminous Letter that the Readers eyes might be filled with them and overlook the other Secondly as to the instance of the Councill at Clarindon in his nineteenth page which he citeth out of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the severall rankes of Great Men and those in blacke Letters of a greater size and saith That not one Commoner appeares yet Master Seldens Hoveden in that very place Tit. Honor Pag. 703. so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Lawes made by Richard the First in his twenty fourth page and hee setteth downe the severall ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Glosse of his owne that they were Barons that were made Knights when as formerly Barons were mentioned in the generall and therefore how proper this Glosse is let others judge especially seeing that not onely Milites and Milites Gregorij but even Ministri were present in such conventions even in the Saxon times And Master Selden in the former knowne place mentioneth an Observation that Tit. Honor Pag. 703. Vniversi personae qui de Rege tenent in Capite sicut ceteri Barones debent interesse judicijs curiae Domini Regis cum Baronibus Fourthly He citeth in his twenty fifth page
a sufficient Seale to all weights and measures which they committed to some Clerke whom they trusted and at this day though a Lay-person beareth title of Clerke of the market And although anciently they might not interesse secularibus yet afterwards it became a part of their Office to assist Judges in secular causes to see that justice be not wronged and had the sole cognisance of all causes criminall belonging to the Clergy their tenants or servants and in their Synods their power reached to such crimes of Lay-men as came within the savour of the Canon though it were but in the cold sent as the Lawes of Athelstane and other his successors sufficienly set forth And thus dressed up let them stand aside that roome may be made for their traine CHAP. IX Of the Saxon Presbyters THese follow their Lords the Bishops as fast as they can hunt Concil Brit. p. 576. for being of the same Order as the lesse proud times acknowledged they would not be under foot and the others above the top True it is that the Bishops loaded them with Canons and kept them under by hard worke under the tricke of Canonicall obedience yet it was no part of their meaning to suffer them to become vile in the eyes of the Laity for they knew well enough that the Presbyters must be their bridles to lead and curbe the people and their eyes to see whether the winds from below blew faire or foule for them whose consciences already told them that they merited not much favour from the people They see it therefore necessary to inhaunce the price of a Presbyter somewhat within the aloye of a Bishop to the end that the Presbytery may not be too like the Babylonian Image whose head was Gold and feet of Iron and Clay A Presbyter therefore they will have to be of equall repute with a Baron Concil Brit. p. 448. Ll Ethelst 13. Ibid. 406. Concil Brir p. 273. L. Aethel c. 2. Ll. Canut c. 12. Mag. cent 8. cap. 9. and his person shall be in repute so sacred as that all wrong done thereunto must be doubly punished with satisfaction to the party and to the Church His credit or fame must not be touched by lay-testimony Nor is he to be judged by any seculer power but to be honoured as an Angell Such are these instruments of the Bishops government and these are put as a glasse between the Bishops and people and could represent the people to the Bishop black or white and the Bishop to them in like manner as they pleased and so under fear of the Bishops curse kept the people in awe to themselves and it CHAP. X. Of other inferiour Church-Officers amongst the Saxons THey had other inferiour degrees of the Clergy which because they are meerly subservient and not considerable in Church-government I shall onely touch upon them The first are called Deacons Deacons which were attending upon the Presbyters to bring the offerings to the Altar to read the Gospell to baptize and administer the Lords Supper Then follow the Subdeacons who used to attend the Deacons with consecrated vessels Sub. Deacons and other necessaries for the administring of the Sacraments Acolites Next these Acolites which waited with the Tapers ready lighted while the Gospell was read and the Sacrament consecrated Then Exorcists Exorcists that served to dispossesse such as are possessed by the Divell an Office as it may seem of little use Concil Brit. p. 54. Lecturers yet very ancient for they are found at the Synod at Arles which was within three hundred yeeres after Christs death Lecturers come next who served to read and expound and these were of use when Churches began to multiply and Presbyters grew idle Lastly Ostiaries Ostiaries which used to ring the bels and open and shut the Church-doores These are the severall ranks of Church-officers being seven in number for Bishops and Presbyters make but one and might be as thus ordered the seven heads of the beast whereon the woman sitteth Concil Brit. 261. An. 750. and with much adoe make up a kind of Church-service somewhat like a great Hoe in a ship-yard at the stirring of a little log and are neverthelesse well payd for their labour CHAP. XI Of Church-mens maintenance amongst the Saxons I Take no notice in this account of the Abbats and Priors other such religious men as they were then called nor can I passe them amongst the number of Church-governours or Officers being no other then as a sixt finger or an excrescence that the body might well spare and yet they sucked up much of the blood and spirits thereof But as touching the maintenance of those formerly mentioned who had a constant influence in the government of the affaires of the publique worship of God and regard of the salvation of the soules of the people I say their maintenance was diversly raised and as diversly imployed First through the bounty of Kings and great men Lands and Mannors were bestowed upon the Metropolitan and Bishops in free almes and from these arose the maintenance that ascended up in abundance to the higher Region of the Clergy but came againe in thinne dewes scarce enough to keep the husbandmans hope from dispaire otherwise had not the Prelates so soon mounted up into the chaire of pompe and state as they did I say these are given in free almes or more plainly as almes free from all service and this was doubtlesse soon thought upon for it was formerly in president with their heathenish Priests and Druids as Caesar noteth Com. 6. that they had omninm rerum immunitatem yet with the exception of works of publique charity and safety such as are maintaining of high waies repairing of bridges and fortifying of Castles c. and hereof the presidents are numerous The worke whereto this wages was appointed was the worship of God and increase of Religion and thus not onely many of the Kings Subjects were exempted from publique service but much of the Revenue of the Kingdome formerly imployed for the publique safety became acquitted from the service of the field to the service of the beade the strength of the Kingdome much impaired and the subjects much grieved who in those early times saw the inconveniences M. Paris in vit Eadrick Abb. and complained thereof to their Kings but could not prevaile This was the vintage of Kings and great men but the gleanings of the people were much more plentifull for besides the Courts which swelled as the irregularities of those times increased and thereby enriched the cofers of that covetous generation An. 1009. Concil Brit. 523. Ll. Aetheld 31. the greatest part whereof ought by the Canon to goe to the publique the best part of the setled maintenance especially of the inferiour degrees arose from the good affections of the people who were either forward to offer or easily perswaded to forgoe constant supply for the Church-men out
of their estates as well reall as personall especially in the particulars ensuing The most ancient of all the rest was the First-fruits First-fruits which was by way of eminency called Cyrick-sceate or in more plaine English Church-fee which was alwaies payable upon St Martins day unto the Bishop out of that house where the party did inhabit upon the day or Feast of the Nativity Concil Brit. p. 185. An. 693. Concil Brit. p. 545. It was first granted by Parliament in the time of King Ina and in case of neglect of payment or deniall it was penall eleven-fold to the Bishop besides a fine to the King as was afterwards ordered by Canutus Tythes Concil Brit. p. 298. An. 787. After the first fruits commeth to consideration the Revenue of Tithes whereof I finde no publique act of state to warrant till the Legatine councell under Offa although the Canon was more ancient The Bishop at the first was the generall receiver as well of these as of the former and by him they were divided into three parts and imployed one to the poore another for the maintenance of the Church Concil Brit. 259. and a third part for the maintenance of the Presbyter But in future times many acts of state succeeded concerning this Ingulsus amongst which that grant of Athelwolfe must be a little paused upon Some writers say that he gave the tenth mansion Gest pontif Lib. 2. cap. 2. and the tenth of all his goods but Malmsbury saith the tenth of the hides of Land but in the donation it selfe as it s by him recited it s the tenth mansion But Math. Westm understands that he gave the tenth part of his Kingdome An. 854. but in the Donation by him published it is decimam partem terrae meae In my opinion all this being by tradition little can be grounded thereupon The forme of the Donation it selfe is uncertaine and varions the inference or relation more uncertaine and unadvised for if the King had granted that which was not his owne it could neither be accounted pious or rationall Nor doe we finde in the donation that the King in precise words gave the Land or the tenth part of the Land of his Kingdome but the tenth of his Land in the Kingdome and the exemplification published by Math. Westm countenanceth the same albeit the Historian observed it not but suppose that the Kingdome joyned with the King in the concession and that it was the course to passe it onely in the Kings name yet could not the tenth Hide tenth Mansion or tenth part of the Kingdome be granted without confusion in the possessions of the people for either some particular persons must part with all their possessions or else out of every mans possession must have issued a proportionable supply or lastly a tenth part of every mans possession or house and land must be set forth from the rest or some must lose all and become beggars to save others all which are to me equally improbable Neverthelesse I doe not take the thing to be wholy fabulous but may rather suppose that either a tenth was given out of the Kings own Demesnes which is most probable or else the tenth of the profits of the Lands throughout the Kingdome and that it was by publique act of state and that clause forgotten by Historians Concil Brit. p. 392. An. 905. Ibid. 527. An. 1009. And thus might a good president be led to Alfred Athelstan and other Kings who setled Lawes under payment of penalties and appointed the times of payment viz. the small Tithes at Whitsuntide and the great Tithes at Alhollantide Another Tribute was that of Luminaries Luminaries Concil Brit. p. 377. Ibid. 545. An. 1032. which by Alfred and Gunthrun was first setled by Law although it had been before claimed by Canon It was payable thrice a yeere viz. Hollantide Candlemas and Easter at each time a halfe penny upon every Hide of Land and this was under a penalty also Ploughalmes An. 905. Another Income arose from the Plough and under the name of Plough-almes at the first it was granted by Edward the Elder generally and the valew was a penny upon every plough and in after times it was ordained to be payd fifteen daies after Easter An. 1009. Souleshot Concil Brit. d. 571. An. 1009. Next comes a fee at the death of the party which was commonly called Soul-shot and payd before the dead body was buried unto that Church where the dead parties dwelling was so as they never left paying and asking so long as the body was above ground and its probable turned into that fee which was afterward called a mortuary The incumbent also of every Church had Glebe laid to the Church Glebe Concil Brit. 260. An. 750. besides oblations and other casuall profits as well arising from houses bordering upon the Church as otherwise All these foure last were payable to the Priest of that particular Congregation and had not their beginning till Parishes came to be setled Peterpence Lastly the zeale of the charity of England was not so cold as to containe it selfe within its own bounds they were a dependent Church upon Rome and their old mother must not be forgotten An Almes is granted for under that lowly title it passed first but afterwards called Romscot or Romesfeogh or Heord-penny for it was a penny upon every hearth or chimney payable at the Feast of St Peter ad vincula and therefore also called Peter-pence it was for the Popes use and was setled under great penalties upon the defaulters It arose by degrees and parcels Concil Brit. p. 230. An. 725. for first Ina the Saxon King granted a penny out of every house in his Kingdome after him Offa granted it out of every dwelling house that had ground thereto occupied to the yeerely valew of thirty pence Concil Brit. p. 311. An. 791. excepting the Lands which he had purposed for the Monastery at St Albans This Offa had a much larger Dominion then Ina and was King over three and twenty shires after whom Aethelwolfe passed a new grant thereof out of his whole Kingdome Ibid. 343. An. 847. which was well nigh all that part which was called Saxony with this proviso neverthelesse that where a man had divers dwelling houses he was to pay onely for that house wherein he dwelt at the time of payment Ibid. 621. Afterward Edward the Confessor confirmed that Donation out of such Tenements as had thirty pence vivae pecuniae If then it be granted that the Saxon subjects had any property in their Lands or tenements as no man ever questioned then could not this charge be imposed without the publique consent of the people and then the assertions of Polidore and the Monks who tell us that Ina and Offa had made the whole kingdome tributary to Rome must needs be a mistake both in the person and the nature of the gift seeing
which we call suite of Court The Court of Free men was holden from three weeks to three weeks wherein the free men Miror p. 17. Lind. gloss Albin hist Saxon. p. 72. as in the Hundred and County were Judges of the fact and from them named as at this day Court leete or the Court of the Liti or such as are manumitted or free men In this Court all actions or suits between the free men of the same Manor and within the same arising were determined nor could any Court no not the Kings intermeddle with such suits before triall had but by the Lords allowance And upon this priviledge the Writ of right patent was grounded But the full nature of this Court is not within my intention but I must referre the Reader to the Law-bookes F. N. Br. 2. For it was the least part of the worke and power which this Court obtained by continuance of time in regard that manors exceedingly multiplied so as no part of the Land was left free and many one of them extended into divers Decennaries the Lords obtained great power over them View of Frankpledge and had of Kings grants of view of Frankpledge within their severall Lordships and further power of inquiry and punishing of matters of publique nusance and such as were contra pacem coronam which by custome became annexed unto the Court-leete The nusances of Copy-holds being done to disherison of the Lord and not proper for the Court of publique inquiry The Judge of this Court-leet was the Lord or his Steward for the directory part and the Steward was properly Coroner within the Manor to take presentments and certifie them to the Coroner of the County And thus this Court swallowed up much of the power of the Decenners Court in the very infancy so as we finde no footsteps of any Writ of Right to the Decenners or chiefe pledges but contrarywise many views of Frank pledge granted to particular persons in the time of Alfred Miror cap. 5. Sec. 1 and many things done by the chiefe pledges in the Courts of these Manors as is to be yet seen in many ancient Court Rols The other Court which by common right belonged to the Lords of Mannors was that of the Copyholders Court Baron called or rather included under the name of the Court Baron which albeit it is called in the ordinarily stile Curia Baronum yet not so properly as I conceive Co. Instit cap. 57. and it may be by way of mistake for Baronis for if it were so properly united formerly to the Court of Free men as ab excellentiori it alwaies passed under that name yet when that Court is omitted and slipt out of the way the Court of Copyholders that remaineth improperly retaineth the name of that which is gone This Court at the first was intended onely for the Lords benefit and for the Tenants right as subservient thereunto I say the Tenants right not against their Lord for they had no right against him but against any other they had protection of Law both for themselves and their estates and as I said before by custome or rather light of Religion their persons and estates were considerable even by the Lords themselves which also caused a Law to be made ut sic de suis hominibus agant quatenus erga Deum reatum non incurrant Regem non offendant Ll. Edw. which law could never be intended of the free holders for it had been a vain redundancy to have made an especiall Law for that which was provided for by the known fundamentall Law of the Kingdome against which a speedy remedy lay by the Kings Writ And that these men how mean soever had even in those daies a kind of property both in Lands and goods for the Laws though by their antique language darkned Selden Spicil 184. cap. 33. yet plainly speak de terra sua Catallis ejus and if the ancient Germans were so generous to their bondmen surely much rather after their comming into this Island in as much as their service was more and more necessary in agriculture which could never be performed by the natives who were not in their own persons conquered although their land was CHAP. XXXIII Of Townships and their Markets THe next Franchese is that of Towns this was taken up as a birth of warre and nurse of peace for their ancestors liked not to dwell in crowds Tacitus ne pati quidem inter se junctas sedes it being their trade or pastime to warre upon beasts when they found no enemies amongst them This solitudinary custome could not be soon shaken off and might well occasion multitudes of Towns in those times though small ones doubtlesse that writers speake of if true it be that after the wasting times of the Danes and Normans in the Conquerours time were found in England forty five thousand Parishes and sixty two thousand Villages Nor was peace lesse beneficiall to them then they carefull of it for by continuance of peace Husbandry Manifactures and Commerce occasioned people to gather to places commodious for habitation in good soile nigh navigable Rivers or Havens and according to their scituation and trade so they swelled in multitude or decayed some of whom growing more eminent then others more care was had of their government and safety for the later by building of Wals and Castles and for the former by setling a Magistracy peculiar to that place or Township not as so many Decenners but as one body consisting of many members and thus by custome they grew to be Fraternities or Corporations under one Magistrate or head whom they called Alderman and held a Court of Justice at the first holden twice a yeere which was in nature of a Leet with a view of Frank pledge Ll. Canut cap. 44. Miror cap. 5. Sec. 1. Markets as may appeare in the cases of Dorcester Circeter and Doncaster in Alfreds time and herewith they had publique markets which served them for their better convenience This priviledge of Market was a liberty of publique sale and trade in commodities that principally concerne the belly but by common course became a passe for commodities of every kind almost Concerning this liberty I shall desire leave to enterpose this parenthesis ensuing before I proceed in the intended discourse In the first times as every man by common right had property in his own goods so by the same right he had power to alien them to any person at any time in any place by gift sale exchange or other waies and that by such alienation but especially by sale a right was vested in the buyer against all men saving the Eignee right which was recompenced upon warranty and recovery in value and in those daies common sence taught men to buy or sell of or to the next neighbour that would bargaine with them and for want of such occasion to repaire to the next assembly
Lindenbr tit 36. three Summons went forth in the Hundred court and if default were made complaint thereof ensued in the County court and thence issued forth a distringas and if the defendant still persisted in declining his appearance the distresse was forfeited and a summons issued upon the Land if then the defendant would not appeare or upon appearance would not give pledges to abide judgement his whole land was seized for the benefit of the King the Lord of the Hundred and complainant because he had offended against all three But if the party appeared in former times he answered forthwith and judgement passed without delay as hath been said unlesse in urgent cases where the matter was raw and then it was adjourned and pledges given by the defendant to the full value Ll. Edgar c. 7. after the custome of the Athenians and if the defendant made default at the day his pledges were forfeited But in after times for better and more advised proceeding the defendant was admitted to his Essoines yet with a proviso Miror cap. 5. Sec. 1. that no Essoine should be allowed for above fifteene daies and this was the direction of King Alfred In the answer of the defendant he either traversed the matter in fact Miror cap 3. Sec. 16. or confessed and justified or confessed and submitted The first put the matter to the judgement of the free men the second to the judgement of the Judge the third to the discretion of the complainant whereby the defendant generally found mercy and in case of trespasse rendred lesse dammage I finde no footsteps in those times of Dilatory pleas or demurrer or other delays unlesse in case of infancy for the Saxons knew no other age of ability to doe or suffer Lindenbr gloss Miror cap. 5. Sec. 1. but the age above one and twenty yeeres and in Alfreds time a Judge suffered death for passing sentence of death upon one under that age albeit the Canonists had in those daies brought into custome other ages of ability in matters concerning marriage although it may well be thought that it requireth no lesse maturity to manage the affaires of a married life then to discerne the nature and difference of manners especially in case of crimes which are contrary to the very light of nature CHAP. XXXVII Of the severall manners of extraordinary triall by Torture Ordeale Compurgators and Battaile EVidence of the matter in fact upon triall of causes in the Saxon judicatory sometimes consisted in the pregnant testimony of the fact it selfe Torture and sometimes in the testimony of some circumstances The first was an unquestionable ground of conviction the second was too weake to command the Verdict although sometimes it perswaded it and therefore those incompassionate times found out a tricke of extorted confession by torture of the party following the principles of passion therein rather then sober judgement for circumstances are sufficient to irritate the hearts of those that are passionate and where jelousie is once entered there 's no place for sparing be the matter never so untrue yet I doe not finde any Law amongst the Saxons to patronise this fashion of conviction albeit it seemeth it was practised for Alfred the King punished one of his Judges with death for passing sentence upon an extorted confession by torture before the Coroner Miror cap. 5 Sec. 1. Cragius and possibly it might be gained from the Lacedemonians although little to the praise of their Greekish wisdome in that particular Seeing that in all reason it must be supposed that feare and griefe will enforce flattery upon the tormentor as well as selfe love draw forth flattery to the benefactor A second sort of evidence was that of Ordeale Ordeale being also grounded upon a preconceit or suspition the manner hereof was divers The thing seemeth to be the birth of the braine of some Church-man who had read of the accursed water The first mention that I finde thereof was at the Councell of Ments An. 813. An. 895. and afterwards in the Councell of Triers but not a footstep thereof in this Kingdome till by Aethelstan it was advanced into the degree of a Law Ll. Aethelst Can. 23. An. 928. after which time it continued in use well nigh three hundred yeeres A strange monument of Gods indulgency to an ignorant age thus turning extraordinary to ordinary for the clearing of innocency and which is no lesse wonderfull allowing in those times unto men under nature such a power over themselves as to adventure against nature Doubtlesse that man or woman was of a daring spirit that first tried the tricke if he had not a miraculous faith in that promise Cum ambulaveris per ignem Isa 43.2 c. and it shewed mettall in them that followed the example but the next age grew dull and men being weary of such bane touches the Clergy that cryed it up their successors cried it down and so devoured their own birth without any difficulty other then a bare injunction of a King that had power to command onely such as would obey Spicil Selden But where fame was yet more slight Compurgators and springing rather from want of charity and misapprehension then promising circumstances men were wont to be contented with a voier Dire or the oath of the party suspected and the concurrant testimony of other men the first attesting his own innocency the other contesting their consciences of the truth of the former testimony and therefore were and still are called compurgators their number was more or lesse and of greater or lesse value according as the offence or the party suspected was of greater or lesse concernment Ll. Edm. c. 16. This manner of triall was of ancient use and both it and that of Ordeale under the directory of the Clergy yet this was the ancienter by three hundred yeeres and first brought into this Nation by the Councell at Berghamsted under Bertwald Archbishop of Canterbury An. 647. And it was performed sometimes more solemnly by solemn receiving of the Eucharist Ll. Canut cap. 5. especially if the party suspected was of the sacred Function Battaile One manner of triall yet remaines which was used both in triall of matters of crime and title and it is the triall by battaile which was in criminall matters with sharpe weapons but in titulary matters with blunt weapons No defendant could refuse battaile offered but such as were too excellent as the King or too sacred as the Clergy or too weake as women maimed persons and children or too inscient as Idiots and Lunaticks or too mean as villains And as these were not necessitated to answer in battaile so was no free man compelled to answer them by battaile Miror cap. 2. Sec. 13. This way was an old way as may appeare by the conclusion of appeales and seemeth more satisfactory then that of Ordeale because this rested upon the consciences both of
Ang. tit 6. Lindenbr as amongst the Angles it was a law that the inheritance should passe unto the issue males on the fathers side untill the fifth generation before any title could accrew to the issue female and then according to their Proverbe it went from the Lance to the Spindle But the Danes possibly might prevent this in the continuance thereof for they brought along with them that which was formerly the Saxon custome Ll. Sax. tit 7. ibid. Concil Brit. 333. which carried the inheritance unto the daughters upon the failing of the issue male as in the example of Cenedritha daughter to Cenulfus amongst multitudes of others may appeare Ll. Alured Sax. c. 7. But where Lands were conveyed by writing or act of the party it was a maxime that the will of the conveyor should be strictly observed nor could ever any one that came in by vertue of such writing ever alien the Land to crosse the currant of the originall conveyance The entailing of estates therefore was very ancient Plo. com 251. b. although by corrupt custome it was deluded as the Lord Dier in his argument of the L. Berklies case observeth Another custome of inheritance was catcht I know not how it s called Burrough English and by the name may seem to be brought in by some Cynicall odde Angle that meant to crosse the world and yet in a way not contrary to all reason for where nature affords least helpe the wisdome of men hath used to be most carefull of supply and thus the youngest became preferred before the elder in the course of descent of inheritance according to this custome There is no further monument of the antiquity hereof that I have met with then the name it selfe which importeth that it sprang up whiles as yet the names of Angles and Saxons held in comon cognisance might arise first from the grant of the Lords to their Tenants and so by continuance become usuall and by this means also might arise the custome of Copyholds of this nature so frequent especially in those Eastern parts of this Island where the Angles setled and from whom that part had the name of the East Angles Gavel kind Another custome of descent remaineth and that is to the children collectively and it s called Gavell kind or Gave-all kind and by the very name seemeth at the first to arise rather from the donation of the parent or other ancestor contrary to common custome then by common Law otherwise no need had been of an especiall name In the originall it seems it equally concerned all both sonnes and daughters as parceners and for want of such the brothers and sisters It seemeth to be first the Law of the Goths or Jutes Stephanus Dan. Burcus Suel for it remaineth in use in these parts of the Easterne Countries But in later times this estate was also tailed or cut out sometimes to the sonnes and daughters severally that is the sonnes or brothers to have two parts and the daughters or sisters one part other times to all the sonnes and for want of such to all the daughters and thus these courses of estates passed over Seas to the Southern parts of this Island where that people most setled in a double stream the first from the Athenians that loved the statelinesse of their families the other from the Lacedemonians who desired rather the continuance of their familes then their greatnesse Emmius Grec The manner of conveying of estates between party and party was either by act of the party executed in his life time Conveyances in writing or after his death such as were executed in the lifetime of the owner and were such as for the most part were in matters of great moment were estates passing by deed of conveyance in writing and for this way the Saxons were beholding to the Latines who taught them that course Ll. Sax. cap. 37. both for form and language and Alfred inforced it by a particular law viz. that all such as hold Lands by deed in writing should hold them according to the intent thereof and not alien the same contrary thereunto the intent thereof being proved by witnesses The nature of the conveyances in these ancient times may appear by a deed of the Kings of this Island about 400 yeeres before the Conquest whereby he granted foure plough lands in the Isle of Tenet unto an Abbesse wherin instead of that which we now call the habendum Habendum the words are contulimus possidendum c. after that followeth the uses of the deed tuo usui c. Vse and then concludes with a warranty Warranty in these words tu vero successoresque tui defendant in perpetuum nunquam me haeredesque meos contra hanc chartulam aliquando esse venturos the effect of which last clause may appeare by the Law of the sale of goods which in those times was that if the sale of goods warranted did not hold the losse should light upon the seller Ll. Inae c. 74. Ll. Sax. c. 24. Ll. Edw. c. 25. Signed The deeds were usually subscribed with the name of him that made the conveyance or passed the estate and if he could not write his name as it befell often then the Deed was under signed with his marke for Withered King of Kent used the signe of the Crosse in subscribing his grants pro ignorantia literarum They used also in those daies to seale their Deeds Sealed Concil Brit. p. 198. for so much the conclusion of King Ina's Charter to the Abby of Glastenbury importeth in words to this effect in English I Inas the King doe confirm this grant and liberty by subscription of my own hand and under the seale of the holy Crosse True it is Ingulfus tels us that seals to Deeds were of Norman originall I believe his intent is concerning seals of Wax anexed or affixed unto deeds Lastly Witnesses in those daies also they used to attest their Deeds by subscribing the names of such as were present who being of greater or meaner ranke rendred the credit of the Deed accordingly more or lesse valuable Acknowledgement and upon this ground did the acknowledging or proving of Deeds before the King Bishop County or Hundred first arise Livery and Seisin Cragius That was the Roman fashion but the more ancient German way of conveyance was by livery and seisin as most suteable to their ignorance who had learning in as sleight account as the Lacedemonians had and cared for no more then would serve the turn of naturall necessity A property they had both in Lands and goods and where that resteth no man can deny them the naturall way of giving and receiving by delivery And therefore though matters of ordinary use seldome come into the observation of story and this petty ceremony might very well passe sub silentio yet we are not altogether left destitute of the footsteps thereof in
antiquity For Aethbald the Mercian King above eight hundred yeeres agoe gave the Monastry of Cutham Concil Brit. 319. with all the Lands thereto appertaining to Christchurch in Canterbury and for the confirmation thereof commanded a clod of earth with all the Writings to be laid upon the Altar Another Monument hereof more ancient by the space of above 100 yeers we finde in that grant of Withered King of Kent Concil Brit. 192. of foure plough lands in the Isle of Tenet the latter part whereof this clause concludes thus Ad cujus cumulum affirmationis cespitem hujus supradictae terrae super sanctum altare posui Last will But every man had not liberty to execute the law of his inheritance in his life time for some were surprised with sudden occasions and unexpected issues and ends and in such cases they did what they could to declare their intents by last will which by common intendment being in writing hath occasioned some to thinke that the Saxons in their originall had no use thereof being as they conceived so illiterate as not having the use of writing but the Character remaining to this day evinceth the contrary nor can those words of Tacitus nullum est testamentum in any rationall way be expounded in this sence if we consider the context which runneth thus Haeredes successores cuique liberi nullum est testamentum Which in my opinion sounds in this sence The heires and successors to every one are his children and there is no testamentary power to disherit or alter the course of descent which by custome or law is setled Otherwise to deny them the use of all testamentary power was a matter quite abhorring the custome of all the Grecians from whom they learned all that they had M Westm An. 817. Malmsb. gest Reg. l. 2. c. 2. Neverthelesse the Saxons had not been long acquainted with the Romanists but they had gotten that trick of theirs also of disheriting by last will as by the testament of Aethelwolfe and others of the like nature in Histories may appeare The conveyances formerly mentioned concerned Lands and goods but if no such disposall of goods were Goods the ancient German custome carried them after the death of the ancestor promiscuously or rather in common to all the children but in succeeding times the one halfe by the law of Edmond passed to the relict of the party deceased by force of contract rather then course of descent After him Edward the Confessor recollecting the Laws declared that in case any one died intestate the children should equally divide the goods which I take to be understood with a salvo of the wifes dower or portion As yet therefore the ordinaries had nothing to doe with administration for goods passed by descent as well as Lands and upon this custome the Writ de rationabili parte honorum was grounded at the common law as well for the children as the wifes part F.N. Br. 122. according as by the body of the Writ may appeare CHAP. XLII Of times of Law and vacancy SUch like as hath been shewed was the course of government in those darker times nor did the fundamentals alter either by the diversity and mixture of people of severall Nations in the first entrance nor from the Danes or Normans in their survenue not onely because in their originall they all breathed one ayre of the laws and government of Greece but also they were no other then common dictates of nature refined by wise men which challenge a kind of awe in the sence of the most barbarous I had almost forgot one circumstance which tended much to the honour of all the rest that is their speedy execution of justice for they admitted no delaies till upon experience they found that by staying a little longer they had done the sooner and this brought forth particular times of exemption Miror cap. 4. Sec. 16. as that of infancy and child-bearing in case of answer to criminail accusations But more especially in case of regard of holinesse of the time as that of the Lords day Saints daies Ll. Sax. cap. 10. Concil Brit. 518. Fasts Ember daies for even those daies were had in much honour Nor onely daies but seasons as from Advent to the Octaves of Epiphany from Septuagesima till fifteen daies after Easter or as by the Laws of the Confessor till eight daies after Easter and from Ascention to the eighth day after Pentecost and though as Kings and times did change so these seasons might be diversly cut out as the Laws of Alfred Aethelstan Aetheldred Edgar Canutus and Edward doe manifest yet all agreed in the season of the yeere and that some were more fit for holy observation then others And thus by the devotion of Princes and power of the Clergy the foure Terms of the yeere were cut out for course of law in the Kings Court the rest of the yeere being left vacant for the exercise and maintenance of Husbandry and particular callings and imployments saving that even in those times the Courts of the County and Hundred held their ancient and constant course Last of all and as a binding law unto all Miror cap. 4. Sec. 18. it was provided that false Judges should give satisfaction to the party wronged by them and as the case required to forfeit the residue to the King to be disabled for ever for place of judicature and their lives left to the Kings mercy CHAP. XLIII An Epilogue to the Saxon government ANd thus farre of the joynts of Saxon government in their persons precincts courts causes and laws wherein as the distance will permit and according to my capacity I have endeavoured to refresh the Image of the Saxon Common-weale the more curious lineaments being now disfigured by time afarre off it seems a Monarchy but in approach discovers more of a Democracy and if the temper of a body may appeare by the prevailing humour towards age that government did still appeare more prevalent in all assaults both of time and change The first great change it felt was from the Danes that stormed them and shewed therein much of the wrath both of God and man And yet it trenched not upon the fundamentall law of the peoples liberty The worst effect it had was upon the Church in the decay of the power of Religion and worship of God For after much toile and losse both of sweat and blood the Danes finding that little was to be gotten by blows but blows and that the Clergy at the least was the side-wind in the course of all affaires laid aside their Paganisme and joyned with the Clergy and as their converts and pupils gained not onely their quiet residence but the favour of the Clergy to make triall of the Throne and therein served the Clergy so well as they brought the people to a perfect Idolatry with times places and persons and subjection of their estates to Church tributes
him over For though he might seem as it were in the heat of the chase to be drawn to London where the Crown was and that he rather sought after his enemies then it yet as soon as he perceived the Crown in his power he disputed not the right although that was Edgars but possessed himselfe of the long desired prey and yet he did it in a mannerly way as if he saw in it somewhat more then Gold and precious stones for though he might have taken it by ravishment yet he chose the way of wooing by a kind of mutuall agreement Thus this mighty Conquerour suffered himselfe to be conquered and stooping under the law of a Saxon King he became a King by leave wisely foreseeing that a title gotten by election is more certaine then that which is gotten by power CHAP. XLV That the title of the Norman Kings to the English Crown was by election SOme there are that build their opinion upon passionate notes of angry writers and doe conclude that the Dukes way and title was wholy by conquest and thence inferre strange aphorismes of state destructive to the government of this Kingdome Let the Reader please to peruse the ensuing particulars and thence conclude as he shall see cause It will easily be granted that the title of conquest was never further then the Kings thoughts if it ever entered therein else wherefore did he pretend other titles to the world But because it may be thought that his wisdome would not suffer him to pretend what he intended and yet in practice intended not at what he did pretend it will be the skill of the Reader to consider the manner of the first William's Coronation and his succeeding government His Coronation questionlesse was the same with that of the Ancient Saxon Kings for he was crowned in the Abbey of Westminster by the Archbishop of Yorke because he of Canterbury was not Canonicall At his Coronation he made a solemne covenant to observe those Laws which were bonae approbatae antique leges Regni Hoveden Eadmer Hist l. 1. p. 13. M. Paris vit Gulielm Malmsb l. 3. fo 154. Wigorn. An. 1066. Glossar Ll. Gul. Spicil 190. to defend the Church and Church men to govern all the people justly to make and maintaine righteous Laws and to inhibit all spoile and unjust judgements The people also entred into Covenant with him That as well within the Land as without they would be faithfull to their Lord King William and in every place to keepe with all fidelity his Lands and Honours together with him and against enemies and strangers to defend It is the selfesame in substance with the fealty that the Saxons made to their Kings as will appeare by the paralelling them both together The Saxons were sworn to defend the Kingdome against strangers and enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulnesse so as by the Saxon way the allegiance first terminated on the Kingdome and then as in order thereunto upon the King with his Lands and honours but the Norman either wholly omitted the first as needlesse to be inserted in a municipall Law it selfe being a Law in nature or else includeth all within the words Lands and Honours taking the same in a comprehensive sence for the whole Kindome and so made up the summe of the Saxon fealty in fewer figures Which may seem the more probable of the twaine because little reason can be rendred why the King should restraine that defence to his private lands if he claimed all by conquest when as all equally concerned him or why he should exclude the publique when as both himselfe and all he had was imbarked therein and it might subsist without him but contrarily not he without it appeareth not to my understanding nor did the thing enter into the Kings purpose if the file of his purposes be rightly considered For speaking concerning Castles Burroughs and Cities which are in nature of limmes of the Common-weale he saith that they were built for the defence of the people and Kingdome was this the service of walls and fortifications Ll. Gul. Spicil 61. and not much rather of men within those places of strength Certainly the plain English is that in time of breach of publique quiet and peace the subiects were bound to defend the Kingdome and in order thereto the people of the same and of the Kings right included in the publique defence else it were a strange conclusion that each man in particular and in their own person alone was bound to defend the Kings right but being imbodied the Kingdome And yet more clearly its apparent in that the service of the order of Knighthood which was the chiefe strength of the Nation in those daies was determined upon the service of the King M. Paris An. 1100 1213. and defence of the Kingdome or which is more plain for the service of the King in or for defence of the Kingdome as the statute of Mortmaine expounds the same Stat. 7. E. 1. But not to force the Kings sence by argument if the King had purposely omitted that clause of the Kingdomes safety as of inferiour regard to his own personall interest it was one of his rashest digressions wherein he soon espied his errour for in the middest of his strong and conquering army he held himselfe unassured unlesse he had a better foundation then that which must change with the lives of a few at the utmost And therefore besides the oath of fealty formerly mentioned he established a law of association that all free men should be sworn brethren Ll. Gulielm Spicil 59. 1. To defend the Kingdom with their lives and fortunes against all enemies to the utmost of their power 2. To keepe the peace and dignities of the Crown 3. To maintaine right and justice by all means without deceipt and delay Joyn then these two oathes together viz. that of fealty and this of fraternity and it will easily appeare that the allegiance of the English to the Norman Kings was no other then what might stand with brotherhood and tender regard of the publique above all and differing from the Saxon fealty onely in this that that was in one oath this in two Wherefore whatsoever respects steered in the reare of the Kings course it s lesse materiall so long as the vanne was right albeit that the sequell will prove not much different from the premises as will appeare in the foot of the whole account Thus entered the first Norman upon the Saxon Throne and as he had some colour of right to countenance his course William Rufus so had his sonne his fathers last will and yet he had as little right as he This was William Rufus that was of his fathers way but of a deeper die and therefore might well be called William Rufus or William in grain He was exceeding happy in the feare or favour of the
of the Archbishops Bishops Abbots and all the Princes of the Kingdome which connection shews plainly that there was Councell besides that of the Prelates and Princes Thirdly in matters of generall charge upon the whole body of the people the King used also the helpe of this grand Councell Ll. Gulielm c. 58. Spicil as may especially appeare in the charge of armes imposed upon the subjects it s said it was done by the Common councell of the whole Kingdome 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 assemblie of the wise men for we finde that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people Antiq. Brit. fo 110. that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Liechfield resigned his Bishoprick in such like assembly if the meaning of Lanfrank be rightly understood Baron Anal. An. 1070. who saith in his letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of this Kings which may be called the first Magna charta in the Norman times by which the King reserved to himselfe from the free men of this Kingdome nothing but their free service Ll. Gulielm c. 55. in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common councell of the whole Kingdome and so asserts in one the liberty of the free men and of the representative body of the Kingdome These footsteps of the Parliament finde we in the Conquerours time besides other more generall intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conquerour he was yet made use of this additionall power of Parliament to perfect his designes and it may be more often then either of his sonnes that yet had lesse 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 wilde and might occasion conceit that he was almost a mad King though he were a witty man therefore it s the lesse marvell if he used not the help of the Common councell more then needs must where Kings many times are told of that which they are loth to know Neverthelesse William the second could not passe over thirteen yeeres without a parley with his Commons and Clergy unlesse he meant to adventure a parley between them and his brother Robert who like an Eagle eyed his posture though he hovered afar of But Henry the first was more wise and being trained up even from the Cradle in the English garb moralized by learning and now admitted into the Throne found it the wisest course to apply himselfe to the rule of an English King viz. to winne and maintaine the good opinion of the people by consorting together with them under one Law and pledging himselfe thereto by taking unto wife one of the English blood-royall by this meanes reseised and reassumed the English in partnership with the Norman in their ancient right of government and reconciled the minds of the people under a lively hope of enjoying a setled government Nor were they greatly deceived herein for his course was lesse plannetary then that of either of his predecessors and yet we finde little said of his parley with his people in a Parliamentary way although more of his laws then of any of his predecessors The reason will rest in this that the writers of those times touch more upon matters of ordinary then politicall observation and regarded rather the thing then the place or manner how The Lawes therefore although they are not intituled as made in Parliament yet in the continuation of the History of Bede its noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae Bede hist l. 3. c. 30. which may give sufficient cause to suppose that he declined not the ancient way no more then he did the ancient Law CHAP. XLVII Of the Franchise of the Church in the Normans time THe Canon law that ever since Austins comming like Thunder rumbled in the cloud now breaks forth with confusion to all opposers It had formerly made many faire proffers of service to this Island but it was disaccepted as too stately to serve yet by often curtesies received it was allowed as a friend a farre of For the vast body of the Roman Empire like a body wasting with age died upward and left the Britons to their own Laws before the second beast was grown which being young was nourished under the Imperiall Law of the first beast till it grew as strong as its damme and began to prey for it selfe The Empire perceiving its gray haires and the youthfull courage of this upstart was glad to enter mutuall league with it the one to maintain the Ecclesiasticall Monarchy of the other and that the Imperiall Monarchy of the former and so became the Canon and Imperiall Law to be united and the professours to be utriusque juris But this parity continued not long the young beast looked like a Lamb but spake like a Lyon and contrarily the Eagle had cast its feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon law above the Imperiall yet allowing it to serve the turne and so the professors of both Laws became students in the Civill but practisers of the Canon This composition thus made beyond the Seas the great worke was how to transport it over into this Isle for the Emperours could intitle the Pope to no power here because none he had Austin the Monke undertakes the worke he offers it to the Britons under the goodly title of Universall Bishop but they kept themselves out of Canon-shot The Saxons allowed the title but liked not the power The Monk observed the stop and left time to work out that which present cunning could not being content for the present that a league of cohabitation should be made between the two Swords Ll. Edw. c. 3. though the spirituall were for the present underling not dispairing that it would worke out its owne way over the Saxon law as it had done over the Imperiall Nor did his conceit altogether faile for the Saxons by little allowed much and the Danes more although the main was preserved untill the Normans came upon the stage who made their way by the Popes leave and gave him a colour of somewhat more then ever any of their Saxon predecessors had done and to gaine the more quiet possession of the Crown to themselves allowed the Pope the honour of their Councell learned to draw the conveyance
conceived to be for the publique benefit viz. either for the preparation or maintenance of publique warre for in such cases it hath been in all times held unreasonable that those whose persons are imployed to serve in the warres should hold lands doubly charged to the same service viz. to the defraying of their own private expences in the warre and maintenance of the publique charge of the same war besides CHAP. LIII Of divers Lawes made concerning the execution of justice ALthough in proceedings in cases of vindicative justice delinquents might seem to be left rather to the fury then mercy of the law yet so long as men are under the law and not without the law it hath been alwaies 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 lesse tyranny then the persecution 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 passe but upon averment of the complaint by accuser or witnesses produced Ll. Hen. 1. c. 5. Fine and pledges shall be according to the quantity of the offence Ll. Hen. 1. M. Paris By these two laws of Henry the first the subjects were delivered from three great oppressions first in making them offenders without complaint or witnesse Secondly in imposing immoderate fines Lastly in urging extraordinary baile Forfeiture of fellons Lands is reduced to a yeere and a day Miror fo 261 The Normans had reduced the Saxon law in this case unto their own last which stretched their desire as farre as the estate would beare but this being so prejudiciall 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 criminall offences manifested by act punished by fine or mulct This by Alfreds law was punished by Talioes law Miror fo 254. but now by a law of Henry the first reduced to mulcts Mainperners are not to be punished as principals unlesse they be parties or privies to the failing of the principall This law of Henry the first repealed the former law of Canutus which must be acknowledged to be rigorous Miror fo 141. although not altogether without reason No person shall be imprisoned for committing of mortall crime unlesse first he be attainted by verdict of twelve men Ll. Hen. 1. c. 5. By imprisonment is intended close imprisonment or imprisonment without baile or mainprise for otherwise its apparent that as well by the Saxon as Norman laws men were brought to triall by restraint Appeales of murder restrained within the fourth degree Before this law Appeales were brought by any of the blood or kinne of the party slaine Miror cap. 2. Sec. 7. but now by Henry the first restrained The ground seems to be for that affection that runnes with the blood grows so cold beyond the fourth degree that the death of the party is of so small account as can it scarcely be reputed a losse of such consequence to the party as to expose the life or price of the life of the manslayer unto the claime of such an one and thus the Saxon law that gave the satisfaction in such case to the whole kindred became limited to the fourth degree as I conceive from the Ecclesiastical constitution concerning marriage Two things more concerning juridicall proceedings may be noted the one concerning speedy course of justice wherein they may seem to justifie the Saxon way but could never attaine to their pace in regard they yeelded so much time to Summons Essoines c. The other concernes election of Judges by the parties for this we finde in the lawes 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 Councell of the Kingdome to whom it belonged to establish laws for the government of the kingdome in time of peace And this will appeare in the preparation for warre the levying of warre and mannaging thereof after its levied for the preparation it consisteth in leavying men and munition or of money In all which questionlesse will be a difference between raising of warre by a King to revenge a personall injury done to the Kings own person and a warre raised by the whole Kingdome or representative body thereof which is commonly done in defence of publique interest and seldome in any offensive way unlesse in recovery of a right of possession either formerly lost or as yet not fully setled Now although it be true that seldome do injuries reflect upon the Kings person alone but that the Kingdom will be concerned therein to endeavour a remedy yet because it may fall out otherwise Kings having been occasioned to leavy war of their own accord but in such case could neither compell the persons of his subjects or their estates to be contributory And of this nature I take the warre leavied by Harold against the Conquerour to be wherein the greatest part of the Kingdome was never ingaged nor therefore did it feele the dint of the Conquerours Sword at all and in this case the Militia must be allowed to such as beare the purse nor can it be concluded to be the Militia of the Kingdome nor any part thereof although it may connive thereat But to set this consideration aside as not coincident at all with the Norman ingagements after they were crowned and to take all the subsequent warres to be meerly defensive of the right of the Crown as in sober construction they will appeare to be as touching the levying of money its evident that it lay onely in the power of the grand Councell of the Kingdome for otherwise the laws were setled that no Tax should be made or taken but such as were due in the Confessors time as formerly hath been shewed Secondly for the preparing of men and munition it was done either by tenure or by speciall law as touching tenure it was provided by way of contract that those that held by Knights service should be ready with their Armes to assist the King for the defence of the Realme So as they were not bound by their tenure to ayd him in any other cases Ll. Gulielm cap. 57. Others were also by especiall law of the Land bound to be ready for their service in that kind For all the inhabitants of this Kingdome held their estates under a generall service which by common right they are bound to performe viz. in time of danger to joyn in defence of their Countrey This is the common fealty or allegiance which all men owe Ll. Gulielm c. 59. and
as foure yeeres for within that time Richard Lucy one of the Justices had renounced his Office and betaken himselfe to a cloister and yet was neither named in the first commission nor in the latter nor did the last commission continue five yeers Hoved. An. 1184. for within that time Ralph Glanvile removed from the Northerne circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appeare though little to the honour of the justice of the Kingdome or of that Judge however his book commended him to posterity I take it upon the credit of the reporter Co. jurisd c. 33 that this Itinerary judicature was setled to hold every seven yeeres but I finde no monument thereof before these daies 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 cognisance 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 Clergy Hoveden Glanvil l. 14. c. 7. I shall say no more of this but that in their originall these Iters were little other then visitations of the Countrey by the grand Councell of Lords Nor shall I adde any thing concerning the Vicontiel courts and other inferiour but what I finde in Glanvile that though robbery belonged to the Kings court Glanv lib. 1. cap. 2. yet thefts belonged to the Sheriffs Court and if the Lords court intercepts not all batteries and woundings unlesse in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour trespasses Idem lib. 9. 10. besides common pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certaine Laws of Iudicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matters 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 finde 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 1. Heresie that ever troubled this Island was inbred by Pelagius but that was amongst the Britons and was first battered by the Councell or Synod under Germanus but afterwards suppressed by the zeale of the Saxons who liked nothing of the Brittish breed and for whose sake it suffered more happly then for the foulnesse of the opinion The Saxon church leavened from Rome for the space of above five hundred yeeres held on its course without any intermission by crosse doctrine springing up Hoved. 585. till the time of Henry the second Then entred a sect whom they called Publicans but were the Albigenses as may appeare 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 this Kingdome unders the name of this Sect whom he caused to be brought before a councell of Bishops Nubrig l. 2. cap. 13. 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 forehead whipped and exposed to extremity of the cold according to the decree of the Church died Decret Papae Alexand. Hoveden 585. This was the manner and punishment of Hereticks in this Kingdome in those daies albeit it seemeth they were then decreed to be burnt in other countries if that relation of Cogshall be true which Picardus noteth upon the 13 chapter of the History of William of Newberry out of which I have incerted this relation Another case we meet with in Henry the seconds time concerning Apostacy 2. Apostacy Bracton lib. 3. cap. 9. which was a crime that as it seems died as soon as it was born for besides that one we finde no second thereto in all the file of English story The particular was that a Clerke had renounced his baptisme and turned Jew and for this was convicted by a councell of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortall and the manner of conviction of both by a councell of the Clergy and delivered over to the Lay power who certainly proceeded according to the direction of the Canon or advice of the councell These if no more were sufficient to demonstrate the growing power of the Clergy however brave the King was against all his enemies in the field Treason 3. 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 daies is wrapped up wholly in the person of the King was in Henry the seconds time imparted to the King and Kingdom as in the first times it was more related to the Kingdome And therefore Glanvile in his booke of laws speaking of the wound of Majesty exemplifies sedition and destruction of the Kingdome to be in equall degree a Lib. 1. cap. 2. wound of Majesty Lib. 10. cap. 1. 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 blood for so I take the meaning of the words in relation to what ensueth Fellonies 4. Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with losse 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 seconds time as appeareth in Hoveden But treason or treachery against the oath fealty Ll. Hen. 1. c. 25. or bond of allegiance as of the servants against the Lord was punished with certaine and with painfull deaths and therefore though the murther of the King was treason yet the murder of his sonne was no other then as of another man unlesse it arose from those of his own servants Ll. Hen. 1. c. 79 The penalty of losse of estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the moveables Glanvil lib. 7. cap. 17. was to the Sheriffe of the County unto whose cognisance the case did belong and the land went to the Lord immediately and not to the King But in all cases of Felony of
the higher nature the party though not the Kings tenant lost his personal estate to the King for ever his free holds also for a yeere and a day after which they returned to the Lord of the soile by way of escheat It seemeth also that the losse not onely of chattels and goods but also of lands c. extended to Outlaries I conceive in case of Felony and the Kings pardon in such case could not bind the Lords right of escheate although it might discharge the goods and the yeere and the day whereunto the King was entituled which case alone sufficiently declareth what power Kings had in the estates of their subjects Manslaughter 5. Manslaughter made not bailable This was law in Henry the seconds time although it crossed the Norman Law Glanvil l. 14. cap. 1 3. and questionlesse it was upon good ground for the times now were not as those in the Conquerours times when shedding of blood was accounted valour and in most cases in order to the publique service And now it seems it was a growing evill and that cried so loud as though in case of Treason baile might be allowed yet not in this case ubi ad terrorem aliter statutum est saith the authour Robbers 6. Robbery shall be committed to the Sheriffe or in his absence to the next Castelane who shall deliver him to the Sheriffe And the Justices shall doe right to them and unto trespassers upon Land Ll. Gul. 4. Spicil 174. By the Conquerours law these offenders were bailable and I conceive this was no repeale thereof and the rather because Glanvile alloweth of pledges in all cases except Manslaughter yea in those crimes that did wound Majesty it selfe Glanvil lib. 14. cap. 1. although they concerne the destruction of the Kings person or sedition in the Kingdome or Army thereof The Justices herein mentioned were intended to be the Justices itinerant and the trespasses upon Land are meant such as are contra pacem Domini Regis as riotous and forcible entries for some trespasses were against the peace of the Sheriffe as formerly hath been observed Fauxonry 7. Fauxonry Glanvil lib. 14 cap. 7. is of severall degrees or kinds some against the King others against other men and of those against the King some are punished as wounds of Majesty as falsifying the Kings charter and whether falsifying of money were in that condition or not I leave or falsifying of measures yet more inferiour I cannot determine but its cleare by Glanvile that falsifying of the deed of a private person was of smaller consideration and at the utmost deserved but losse of member Inheritances may not be aliened 8. Glanvil lib. 7. cap. 1. Ibid. c. 5. Inheritances were in those times of lands or goods for it was the custome then that the personall estate the debts deducted was divisible into three parts one whereof belonged in right to the wife as her reasonable part the other to the heire and third to the testator to make his will of them and of the other two parts he could not dispose by will Concerning Lands it was regularly true that no man could alien his whole inheritance to the disherisin of his heire either by act in his life time or any part thereof by his last will without the concurrance of the heire But of purchased lands he may give part by act executed in his life time though he have no Lands by inheritance and if he hath no issue then he may alien all And where a man hath Lands by inheritance and also by purchase he may alien all his purchased lands as he pleaseth If the lands be holden in Gavel kinde no more of the inheritance can be conveyed to any of the children then their proportionable parts will amount unto This law of inheritance was divers according to the tenure for the lands in Knight-service alwaies discended to the heire but such as were holden in soccage passed according to the custome either to the eldest or to the youngest or to all equally And thus stood the generall state of inheritance from the Normans times hitherto Ll. Hen 1. c. 88. seeming somewhat too strait for the free men that by law of property might challenge a power to doe with their own as they pleased But the Normans saw a double prejudice herein the first was the danger of ruine of many of their families who now ingrafted into the English stocke and yet not fully one might expect a late checke to their preferments from the Saxon parents after a long and faire semblance made of their good will The second prejudice was the decay of their Militia which was maintained by riches more then by multitude of men partly because that rich men are most fearfull of offending and therefore ordinarily are most serviceable both with their bodies and estates against publique dangers and partly because by their friends and allies they bring more ayd unto the publique by ingaging them in the common cause that otherwise might prove unsensible of the condition of their Country The heire of a free man shall by descent be in such seism as 9. his ancester had at the time of his death Vide Glanv l. 7. c 9. doing service and paying releif and shall have his chattailes If the heire be under age the Lord shall have the Wardship for the due time and the wife her Dower and part of the goods If the Lord withhold seisin the Kings Justice shall trie the matter by twelve men The first of these branches is declaratory of a ground of common law but being applied to the last is an introduction of a new law of triall of the heires right by Assize of Mortdancester where formerly no remedy was left to the heire but a Writ of right If these three branches be particularly observed they speake of three sorts of heires of tenants by Knight-service viz. such as are majors or of full age and such as are minors or under age and such as are of a doubtfull age Those that are of full age at the death of their ancestors may possesse the lands descended and the Lord may not disseise him thereof but may be resisted by the heire in the maintenance of his possession so as he be ready to pay reliefe and doe service that is due and if the Lord expell him he shall have remedy by Assize Those heires that are minors shall be under the Lords guardianship till they come to one and twenty yeeres Tbe heires of such as hold by soccage are said to be at full age at fifteene yeeres because at that age they were thought able to doe that service but the sonnes of Burgesses are then said to be of full age when they have ability to mannage their fathers calling such as telling of money measuring of cloath and the like yet doth not Glanvile or any other say that these were their full age to all purposes albeit that some Burroughs at
sounds as much as if the tenants were bound by their tenures to ayd their Lord in all cases of extraordinary charge saving that the Lord could not distraine his tenant for ayd to his warre and this according to the Lords discretion Ibid. for Glanvile Glanv l. 9. c. 8 saith that the law determined nothing concerning the quantity or valew of these ayds These were the Norman waies and savoured so much of Lordship that within that age they were regulated But that of reliefes was an ancient sacrifice as of first fruits of the tenement to the Lord in memoriall of the first Lords favour in conferring that tenement Ibid. and it was first setled in the Saxons time The Lords priviledge of power extended so farre as to distraine his tenants into his own Court to answer to himselfe in all causes that concerned his right and so the Lord became both Judge and party which was soon felt and prevented as shall appeare hereafter Another priviledge of the Lords power was over the tenants heire after the tenants death in the disposing of the body during the minority and marriage of the same As touching the disposing of the body the Lord either retained the same in his own power Glanv 7.10 or committed the same to others and this was done either pleno jure or rendring an account Ibid. c. 12. As concerning the marriage of the females that are heires or so apparent the parents in their life time cannot marry them without the Lords consent nor may they marry themselves after their parents death without the same and the Lords are bound to give their consent unlesse they can shew cause to the contrary The like also of the tenants widdows that have any dowry in the lands of such tenure And by such like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons 14. Of the power of the last Will. It is a received opinion that at the common law no man could devise his lands by his last will If thereby it be conceived to be against common reason I shall not touch that but if against custome of the ancient times I must suspend my concurrence therewith untill those ancient times be defined for as yet I finde no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all conveyances Voluntas donatoris de cetero observetur And therefore nothing was more ordinary then for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. M. Paris An. 1216. Hoveden An. 1199. Malmsb. nov l. 1. Malmsb. l. 3. Thus King John appointed Henry the third his successor and Richard the first devised the Crown to King John and Henry the first gave all his lands to his daughter and William the Conquerour by his last will gave Normandy to Robert England to William and to Henry his mothers lands If then things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller free holds should be of too high esteem to be credited to such conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposall of the last will of the possessour nor doe I thinke that either they were thus in this Kingdome or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vaine Glanvil l. 7. cap. 1 5. I have observed the words of Glanvile concerning this point and I cannot finde that he positively denieth all conveyance of land by Will but onely in case of disherison the ground whereof is because its contrary to the conveyance of the law and yet in that case also alloweth of a disposing power by consent of the heire which could never make good conveyance if the will in that case were absolutely voide and therefore his authority lies not in the way Nor doth the particular customes of places discountenance but rather advance this opinion for if devise of lands were incident to the tenure in Gavell kind and that so generall in old time as also to the burgage tenures Ll. Gulielm cap. 61. which were the rules of Corporation and Cities Vbi leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common law And therefore those conveyances of lands by last will that were in and after these times holden in use seem to me rather remnants of the more generall custome wasted by positive lawes then particular customes growing up against the common rule It s true that the Clergy put a power into the Pope to alter the law M. Paris An. 1181. Hoved An. 1181. Decret Alex. pap Hoveden fo 587. as touching themselves in some cases for Roger Archbishop of Yorke procured a faculty from the Pope to ordaine that no Ecclesiasticall persons Will should be good unlesse made in health and not lying in extremity and that in such cases the Archbishop should possesse himselfe of all such parties goods but as it lasted not long so was himselfe made a president in the case for being overtaken with death ere he was provided he made his will in his sicknesse and Henry the second possessed himselfe of his estate And it s as true that Femme coverts in these daies could make no will of their reasonable part Glanv l. 7. cap. 5 16. because by the Saxon law it belonged joyntly to the children Nor could usurers continuing in that course at the time of their death make their will because their personall estate belonged to the King after their death and their lands to their Lords by escheate although before death they lie open to no censure of law but this was by an especiall law made since the Conquerours time for by the Saxon law they were reputed as outlaws Neverthelesse all these doe but strengthen the generall rule Ll. Edw. 37. viz. that regularly the last will was holden in the generall a good conveyance in law If the will were onely intended and not perfected or no will was made then the lands passed by descent and the goods held course according to the Saxon law Glanv l. 7. c. 6. cap. 8. viz. the next kinsmen and friends of the intestate did administer and as administrators they might sue by Writ out of the Kings court although the Clergy had now obtained so much power as for the recovery of a legacy or for the determining
may see the great difference between the Prince and the King in one and the same man The most part of those laws were little other then plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergy and therefore delivered the last law in a petitionary way to the Clergy because it concerned the execution of justice in prohibited times and yet bound up all with a salvo to himselfe and his prerogative like a wise King that would neither loose right nor doe wrong nor yet stickle to debate with his subjects now when as his eye was upon a further marke Walsing 46. For Leolin the Prince of VVales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to runne its course that he might have done the sooner Otherwise he had a seed of his fathers conceit that laws are not made for Kings as appeared afterward for after he had gotten his army into the field he tooke a fifteenth which was granted to his father and this was inaudito more M. West An 1276. but there was no disputing with power and therefore the subject must be contented rather to score it up against the future then require present pay so dangerous a thing it is for England that Kings should have occasion to gather armies though for never so honourable imployment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine yeeres travell before they could attaine the shore although it had been often within their view It may be the King found it advantagious for his government to maintaine an Army in the field under the colour of the Welsh warre that he might more bow his subjects to his own bent for during these warres the King made many breathings and tooke time to looke to the husbanding of his own revenue as those Ordinances called Extenta manerii and Officium coronatoris doe witnesse and the Statute of Bigami But the people were not altogether yet tamed for the times being still in warres and they occasioning much waste of treasure put the King to the utmost pitch of good husbandry and one degree beyond the same so as under colour of seising his own he swept up also the priviledges and liberties of his subjects M. West Polyd. virg some authours reciting the complaints of the Church men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another combuston had not the meeting at Glocester setled things for the present by referring the right of franchises to debate in the Eyer and ordering reseisure of such liberties into the subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth chapter of the Statute of Bigami Neverthelesse however debonaire the King seemed to be the sore between him and his subjects was not fully cured nor did the Lords trust him further then needs must for whether they served in the field or met at councell still they were armed and during this daring of each other were many profitable lawes made whiles neither party durst venture bloodshed in touching too nigh upon the priviledges of each other principally because the affaires in Wales were but laid asleepe and upon reviving might turne the ballance to either side The wars awake againe and therein are consumed nigh five yeeres more of the Kings reigne so as what ever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the prerogative of the Crown at home Nor had he scarcely breathed himselfe and army from the Welsh wars but he found both France and Scotland his enemies at once The King faced onely the first and fought the second which held him work the remainder of his daies at the same time also he arred both the Clergy and Laity at his own home as if providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the world whether his justice was spontaneous or by necessity for as yet he held the grand Charter at parley and therefore was rather eyed then much trusted Albeit he was put upon confidence in the subjects discretion for ayd of him in his continuall undertakings nor did they disclaime him herein however chargable it was for all seem willing he should be imployed any where so as not within the foure Seas It s probable the King knew it and therefore having made a voyage into France he changed the Scene of warre but to the other side as it were of a river in hope his Lords would follow but it would not be this angred him and he them nor would his Clergy allow him any ayd papa inconsulto and therefore he outs them from his protection these and his irregular preparations for warre by summons not onely of his Knights but all other that held Land worth 20 li. per annum Walfing 69. and taxes imposed by an arbitrary way increased rancour into a kind of state scoule little better then a quarrell for appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the grand Charter at the long runne and allowed it as the common law of the Kingdome and seconded the same with many succeeding confirmations in the 27 25 Edw. 1. 28 yeeres of his reigne as if he had utterly renounced all thought of a contrary way but the Stat. in his 28th yeere had a sting in the taile that was as ill as his saving of ancient ayd and prisals which was in the Stat. of confirmation of the Charters though it were omitted in this Stat. for the saving was of such a sence as time and occasion would move the Kings heart to make it and thus this Statute became like a Hocus pocus a thing to still the people for the present and serve the Kings turne that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good successe and the terrour of those that had stopped the broad way of his extravigant prerogative and therfore looks bigge rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his warres in Flanders all come and submit and as
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 Fits Abbe 25. and without whom all the rest were accounted but as dead persons Marlbr c. 10. No Clergie man is bound to attend at the Sheriffs Turne William the Conquerour first exempted the persons of the Clergy from attendance upon temporall Courts yet they were still urged thereto Gloss p. 428. Ll. Hen. 1. c. 31. and especially by a Law in Henry the firsts 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 Clergy by Henry the third besides his confirming the grand Charter And his sonne Edward the first pursued the same course especially in his first times when he was but tenderly rooted as may appeare in the Statute of West 1. Clergy men nor their houses shall be charged with Quarter nor their goods with purveyance or cart-service West 1. cap. 1. under perill of imprisonment and dammages 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 meanes whereof the Church Revenues were exceedingly wasted for remedy whereof all offenders are by this Statute made liable to fine and imprisonment and double dammages in case of action of trespasse the King only excepted against whom they had no defence but would rather have wonne him to have been their defence against the exactions from Rome that continually plagued them A Clerke taken upon felony being demanded West 1. cap. 2. shall be delivered to the Ordinary but being indicted shall not be dismissed by the Ordinary without due purgation With due respects to the judgement of those grave and honourable persons of the Law Co. 2. instit 164. Stamf. 130. it seemeth to me that before the making hereof the use was that if a Clerke was defamed or appealed by an offender for felony before conviction he was forthwith imprisoned nor could he be delivered unto the Ordinary upon demand before inquest taken unlesse upon sufficient security to indure the triall before the Judges itinerant which thing was not easie to be had for a Clerke as times then were This Law therefore was made in favour of the Clergy who required that such as were Clerici noti honesti should forthwith upon their apprehending be sent unto their Ordinary M. Paris addit fo 200 306 207. and those which were vagi incogniti should upon demand be delivered to be judged by their Ordinary freely and non expectatis justiciariis quibuscunque Such wandring Clerks therefore the Clergy will have delivered before inquisition if demand be made Neverthelesse because the indictment passed many times befor the demand came for by the 15 Article of the Clergies complaints foregoing it appeares that the Lay Judge made more then ordinary speed for feare of stop This law provided that such also should be delivered to their Ordinary and that due purgation should passe before the party were delivered and in case the Ordinary neglected his duty herein he was liable to a fine or amercement Briton 4. fo 11. Thus is Briton to be understood in this point whereas Bracton speaking of such as are convicted affirmeth that if demand be made of such as are not indicted for of such he speaketh they ought to be delivered without indictment Bracton lib. 3. fo 123. I suppose he meaneth by the Church law for till this Statute the temporall Judges practice was otherwise as appeareth by the 14 Article of the Clergies complaint foregoing and so by this Law the 14 and 15 Articles of the Clergies complaint are answered West 1. c. 5. Disturbers of the freedome of elections fined With submission to the judgement of others I suppose that this was framed principally for the satisfaction of the Clergies complaints in the third fourth and fifth Articles foregoing and I am the rather induced hereto because as touching elections into temporall places of government severall laws are especiall framed such as are elections of Sheriffs and Coroners whereof the one is West 1. cap. 10. the other Artic super Cart. cap. 10. and no law is especially made as touching the elections of the Clergy if not this W. 2. c. 19. Ordinaries having the Goods of the intestate shall answer his debts Originally the goods of the intestate passed by a kinde of descent to the children afterward by a Saxon law the wife had her part and this continued all the Normans time But now the strength of the Canon law growing to its full pitch after a long chase attached the prey In Henry the firsts time they had gotten a taste for although the wife and children or next of kinne had then the possession yet it was for the good of the soule of the deceased and the Ordinary had a directing power therein and so was in the nature of an overseer and somewhat more Afterwards in the time of King John the Clergy had drawn blood for though the possession was as formerly yet the dividend must be made in the view of the Church and by this means the deviders were but meere instruments and the right was vanished into the clouds or as the Lawyers terme it in Abeyance But in Henry the thirds time the Clergy had not onely gotten the game but gorged it both right and possession was now become theirs and wrong done to none but the Clouds This was not well digested before Edward the first recovered part of the morsell and by this law declared the use and benefit of the deceased and thus the one was satisfied in having what he used not the other in using what he had not But these are but gleanings the Law of Circumspecte agatis brings in a load at once For the Clergy being vexed with the passing of the Stat of Mortmaine whereof hereafter when we come to speake of the Clergies losses they make grievous complaints of wrongs done to their priviledges Antiq. Brit. 194. and after six yeeres the King is at length wonne and passed a writing somewhat like a grant of liberties which before times were in controversie and this grant if it may be so called hath by continuance usurped the name of a Statute but in its own nature is no other then a Writ directed to the Judges in substance as followeth Take good heed that you doe not punish the Bishop of Norwich and his Clergy if they hold plea in Court Christian of things meerely spirituall
lost man had lesse care of such smaller matters and therefore allowed that his Judges of Assizes should be licenced by the Archbishop to administer oathes in their circuits in the sacred times of Advent and Septuagessima Antiq. Brit. Eccles 209. and this course continued till Henry the eights time The Clergy having thus gotten the bridle gallop amaine they now call whom they will and put them to their oathes to accuse other men or themselves or else they are excommunicated Henry the third withstood this course if the Clergy mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the law holds its course and in pursuance thereof we finde an attachment upon a prohibition in this forme ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned Regist fo 36. and by Ecclesiasticall censures constrained Lay persons men or women to appeare before him to sweare unwillingly at the Bishops pleasure to the great prejudice of our Crown and dignity and contrary to the custome of the Kingdome of England And thus both King and Clergy were at contest for this power over the peoples consciences to which neither had the right otherwise then by rules of law Bigamists shall not be allowed their Clergie Stat. Bigam 4 Edw. 1. cap. 5 whether they become such before the Councell of Lions or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergy seemeth by this law that they had Clergy that were married once and againe and yet before and after the Councell were admitted as Clerks in the judgement of the Law But the Generall councell interposes their authority and deprives them that are the second time married of all their priviledges of Clergy It was it seemeth twenty yeeres and more after that Councell before the Church-men in England were throughly reformed for either some were still Bigami at the making of this law or as touching that point it was vaine nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whither this slow reformation arose from the defect in law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the canons of Generall councels Generall councels eo nomine had formerly of ancient times gotten a kind of praeeminence in this Nation but by what meanes is not so cleare In the Saxon times they were of no further force then the Great councell of this Kingdome allowed by expresse act For the Nicene faith and the first five Generall councels were received by Synodicall constitutions of this Kingdome made in the joynt meeting both of the Laity and Clergy and during such joynt consulting the summons to the Generall councels was sent to the King to send Bishops Abbats c. but after that the Laity were excluded by the Clergy from their meetings and the King himselfe also served in the same manner the summons to the Generall councell issued forth to the Bishops immediately and in particular to each of them and to the Abbats and Priors in generall Bineus tom 13 Ps 2. pag. 674. M. Paris by vertue whereof they went inconsulto Rege and sometime Rege renitente and appeared either personally or by proxy Others came as parties to give and receive direction or heare sentence in matters tending to spirituall regards and for this cause issued summons sometimes even to Kings as at the councell of Lions aforesaid it s said that the Pope had cited Reges terrae alios mundi principes dictum principem meaning Henry the third M. Paris An. 1245. the matter was for assistance to the holy warre and to determine the matter Henry the third and his Clergy men And as in that case so in others of that kind Kings would send their Embassadours or Procters and give them power in their Princes name interessendi tractandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concerne fidei orthodoxae fulciamentum Bineus Tom. 3. Ps. 2. pag. 913. Tom. 4. Ps. 1 pag. 14. Regumque ae principum pacificationem or any other particul r cause which occasionally might be incerted so long then as Kings had their votes in the Generall councels they were ingaged in the maintenance of their decrees and by this meanes entred the Canon law into Kingdomes Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into forraine parts where the Generall councels were holden and that it was thrift for them to send such proctors that might not altogether spend upon the Kings purse allowed Bishops and Clergymen to be Proctors for their Princes that in the negative they might be pii inimici and lesse active but in the affirmative zealous and so make the way wider by the Temporall and Spirituall vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the ingagement and respect which these his proctors had in councels they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Neverthelesse the case sometimes was such as could not expect favour and then as the Kings temper was they would sometimes ride it out with full saile and to that end would either joyn with their Ecclesiasticall Proctors some of the Barrons and great men of their Realme to adde to the cry and make their affaires ring louder in the eares of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to looke to the rights of the Crown as Henry the third did at the councell at Lions and this sounded in nature of a protest Foxe Mart. Ps. 2. 263. and within the Realm of England had the force of a proviso or saving But if the worst of all came to passe viz. that the councell passed the cause against Kings without any inhibition or injunction yet could it not bind the law of the Land or Kings just prerogatives no not in these times of Romes hower and of the power of darknesse For at a Synod holden by Archbishop Peckam An. 1280. the acts of the Councell of Lions was ratified and amongst others a Canon against non residency and pluralities and yet neither Councell nor Synod could prevaile for in Edward the seconds time an Abbat presenting to a Church vacant as was supposed by the Canon of pluralities the King whose
divers Lords the Lords by priority shall have the marriage West 2. cap. 16 These laws were in use during the reignes of those Kings although it can not be certainly concluded hereby that the wives portion properly belonged to the Lord as for his own benefit partly because the female Wards should have no advancement if it belonged to the Lords and partly because this forfeiture was given to the Lords in nature of a penalty as appeareth by the frame of the Statute of Merton cap. 8. Vide Stat. Merton cap. 1 2. Prerog Reg. cap. 4. Widdows shall have their Dower inheritance their inheritance which they have joyntly with their husbands their marriage freely and their Quarentine With due regard of the opinion of others I shall propound my own It seemeth to me that the King is within this Law as well as within the former lawes of the Normans and those of Henry the second that are of this kind and as he is within the compasse of every law of this Charter and that it is called the Grand charter as most immediately comming from the King to the people and not from the Lords Nor is there any ground that the Law should intend to give liberty to widdows of Wards belonging to inferiour Lords to marry whom they will and that onely the Kings widdows shall be bound Nor did this suite with the contest between the Barons and the King that their widdows should be bound unto the King and the widdows of their tenants discharged from their tuition and therefore I conceive by the word maritagium is not meant liberty of marriage but her marriage portion or rationabilis pars according to the foregoing Laws of Henry the first and Henry the second and the Saxon customes But as touching the liberty of marriage it is defined and expressed that the widdows shall not be compelled to marry neverthelesse if they shall marry they must marry with the Lords liking cap. 9. Glanvil lib. 7. cap. 12. otherwise he might have an enemy to be his tenant that might instead of homage and service prove traytour and be his ruine Lastly touching the widdows dwelling the law thought it unreasonable that she should immediately after the death of her husband be exposed to be harbourlesse and therefore ordained that she might continue in her husbands house forty daies if it were not a Castle and then she was to have another dwelling assigned to her because by common intendment she is not supposed to be a person meet to defend a castle and this was called her Quarentine which I met not with amongst the Saxon laws and therefore suppose it be of Norman originall No mans land shall be seised for debt to the King so long as the personall estate will satisfie cap. 10. Nor shall his pledge be troubled so long as the principall is sufficient unlesse he refuse to satisfie and then the pledge shall recover in value The first part hereof was the issue of the law concerning elegit formerly observed in the Saxons times for the regard of law principally extended unto the person next unto the free hold and lastly unto the goods The latter part of this law was the law of pledges or Decenners in the same times unto which the Reader may resort for further light herein The City of London and other Cities Burroughs cap. 11. and Towns and the Cinqueports and other ports shall enjoy their ancient liberties The whole Kingdome and the members thereof herein expressed had all their liberties saved from the dint of conquest by the law of VVilliam the first upon which although some of the succeeding Kings did invade Seld. Spicil fo 192. yet none of them made any absolute disseisin although disturbance in some particulars But King Iohn did not onely confirme them by his grand Charters but by particular Charters to each Corporation with some enlargements and in his grand Charter inserted one clause which in the grand Charter of Henry the third appeareth not which thus ensueth Et ad habendum commune concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis which if the barbarisme of the Latine mislead me not is thus in English And to have right of Common councell or to be of the Common councell of the Kingdome for the assessing of ayds other then in three cases aforesaid viz. for redemption of their captive King for Knighting of the Kings sonne and for his daughters marriage because these three might be due by the common Law the two latter by custome the former by common right although mentioned from the late disaster of King Richard which King John might with shame enough remember and expect the same measure from the censure of an unquiet conscience I shall not enter into debate concerning the omission hereof in the later Charters possibly it might seem a tautology Nor concerning the restriction as if it did imply that the Burgesses had vote onely in cases of generall assessements but shall leave it to the consideration of the Reader cap. 12. No distresse shall be taken for greater service or other mater then is due Distresses are in nature no other then a summons in act or the bringing of a man to answer by seisure of part of his goods and it was used by the Saxons as hath been shewed and because the rich men under colour of seeking their right many times sought for wrong and though they could not prevaile in the issue yet prevailed so farre as the defendant could not escape without charge and hindrance Glanvil lib. 12 cap. 9. therefore the law provided a Writ of remedy against unjust vexation which Glanvile remembreth us of and yet because that remedy also carried with it matter of charge and disturbance to the Plantiffe and so the remedy might be worse then the disease therefore the Law defined distresses by circumstances of person matter time and place under penalties of fine and amercement besides the recompence to the party First Stat. Marlbr cap. 1. Glanvil lib 9. cap. 1 8. it must not be taken but by leave from the Kings court unlesse in case of matters due by common right and upon complaint made by the plantiffe The King sent out a summons in this manner Henricus Rex Ang. Hominibus Abbatis de Ramsey salutem Gloss 215. Precipi oquod cito juste reddatis Abbati Domino vestro quicquid ei debetis in censu firma debitis placitis quod si nolueritis ipse vos inde constringat per pecuniam vestram And in all cases of matters due by common right Glanvil lib. 9. cap. 8. Stat. Marlbr cap. 2 3 4 15. the distresse never was done in an arbitrary way but by Judiciall act in the Lords Court Secondly no distresse for suite shall be made out of the fee nor against any person but such as are of that fee. Nor shall any distresse be made in
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 publique 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 Townes 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 keepe them in awe they were neverthelesse by continuance together become tractable and conspired for the mutuall 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 is principally liable to that duty because their safety is more principally interested and therefore prizes there taken may be payd at a day to come but in all other places immediately Neverthelesse this lasted not long for the souldiers found out a tricke of favouring their own quarters and preserving them in heart against a back winter knowing that at such times its better to seeke for provision nigh then to be compelled to seeke far off But this Stratagem was cut off by the next King who inhibited all manner of purveyance in any other Town Westm 1. cap. 7 then in the same Town wherein the Castle is seated This was a charge that was but temporary and occasionall That which was more lasting and burdensome upon the subjects was purveyance for the King which neverthelesse cannot be avoyded by reason of the greatnesse of his retinue especially in those daies 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 household 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 Artic. super cart cap. 2. and to avoyd the many inconveniences which might and did arise in those spoyling times It was ordained that it should be felony for any purveyor to purvy without warrant 2. That none but the Kings purveyour must purvey for the Kings house and that he must purvey onely for the Kings house and to purvey no more then is necessary and to pay for the things they take And because Kings were oftentimes necessitated for removall from place to place purveyance of carriage was also allowed West 1. c. 32. and in case the subjects were grieved either by more purveyance then was necessary or by non payment for their commodities so taken or with composition for the Kings debts for such purveyance the offenders were lyable to fine and imprisonment Artic super cart cap. 2. Or if they were grieved by purveyours 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 cap. 22. Nor is he compellable to either so long as he is in the service in the Army By the ancient custome 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 Knightservice and that it was not annuall but promiscuously Knights might either performe 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 doe the service in his own person or by his Esquire or another appointed by him thereto No Knights nor Lords nor Church-mens Carriages cap. 23. 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 Churchmen were exempted from charge to the Kings carriages meerely in favour to the Canon which exempted the goods of the Clergy from such lay service neverthelesse the complaints of the Clergy formerly mentioned shew that this was not duely observed Knights and Lords were discharged not onely for the maintenance of their port but more principally because they were publique servants for the defence of the Kingdome in time of warre and the Kingdome 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 then the yeere and a day cap. 24. and the Lord is to have the remainder Anciently the Lords had all the estate of felons being their tenants Instit 2. and the King had onely the prerogative to waste them as a penalty or part thereof but afterwards the Lords by agreement yeelded unto the King the yeere and a daies profit to save the Lands from spoile Bract. lib. 3. fo 137. Prerog Reg. cap. 16. and in continuance of time the King had both the yeere and day and waste Fugitives also were in the same case viz. such as deserted their Countrey either in time of need or such as fled from the triall of Law in criminall cases for in both cases the Saxons accounted them as common felons Neverthelesse the two customes of Gloucester and Kent are saved out of this law by the Statute the first whereof saves the Land to the heire from the Lord and the second saves the same to the heires males or for want of such to the heires females and to the wife her moity untill she be espoused to another man Prerog Reg. cap. 14. Fits 2 E. 2. Tit. Escheat 12. unlesse she shall forfeit the same by fornication during her widdowhood And by the same law also the King had all Escheates of the tenants of Archbshops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden cap. 25. All weares shall be destroyed but such as are by the Sea coaste The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the weares to his own use as appeareth by a Charter made to the City of London recited in the second institutes upon this Law and this was to the detriment of the free men especially of the City of London in regard that all free men were to have right of free passage through Rivers as well as through high waies and purprestures in either were equally noxious to the common liberty and therefore that which is set down under the example or instance of the rivers of Thames and Medway contained all the rivers in
sold delayed or denied It s a comprehensive law and made up of many Saxon laws or rather an inforcement of all laws and a remedy against oppression past present and to come and concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the law and his liberty likewise so as he shall be shut into no place by imprisonment nor out of any place by banishment but shall have liberty of ingresse and egresse His estate both reall and personall shall also be under the protection of the Law and the law also shall be free neither denied nor delayed I thinke it needlesse to shew how this was no new law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the summe of all the foregoing discourse tendeth thereto cap. 32. Merchants shall have free and safe passage and trade without unjust taxes as by ancient custome they ought In time of warre such as are of the enemies Countries shall be secured till it appeare how the English Merchants are used in their Countries That this was an ancient law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon laws So as it appeareth that not onely the English free men and natives had their liberties asserted by the law but also forrainers if Merchants had the like liberties for their persons and goods concerning trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the law as the free men had And unto this law the charter of King John added this ensuing It shall be lawfull for every free man to passe freely to and from this Kingdome saving fealty to the King unlesse in time of warre and then also for a short space as may be for the common good excepting prisoners outlaws and those Countrey-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this law of free passage out of the Kingdome was not anciently fundamentall but onely grounded upon reason of State although the free men have liberty of free passage within the Kingdome according to that originall law sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the third as was also another law concerning the Jewes which because it left an influence behind it after the Jewes were extinct in this Nation and which continueth even unto this day I shall incert it in this short summe After death of the Jewes debtor no usury shall be payd during the minority of the heire though the debt shall come into the Kings hand And the debt shall be payd saving to the wife her dower and maintenance for the children according to the quantity of the debtors Land and saving the Lords service and in like manner of debts to others The whole doctrine of usury fell under the title of Jewes for it seemeth it was their trade and their proper trade hitherto Concil Brit. 299. It was first that I met with forbidden at a Legatine Councell nigh 300 yeeres before the Normans times but by the Confessors law it was made penall to Christians to the forfeiture of estate and banishing and therefore the Jewes and all their substance were holden to be in nature of the Kings villeines as touching their estate Ibid. 623. Glanvil lib. 7. cap. 16. for they could get nothing but was at his mercy and Kings did suffer them to continue this trade for their own benefit yet they did regulate it as touching infants as by this law of King John and the Statute at Merton doth appeare M. Paris An. 1229. Merton cap. 5. Stat. de Judais An 18 E. 1. but Henry the third did not put it into his Charter as I thinke because it was no liberty of the subjects but rather a prejudice thereto and therefore Edward the first wholly tooke it away by a Statute made in his time and thereby abolished the Jewes Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly cap. 33. cap. 34. In all alienations of Lands sufficient shall be left for the Lords distresse Prerog Reg. cap. 7. Submitting to the judgement of the learned I conceive that as well in the Saxon times as untill this law any tenant might alien onely part of his lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord paramount other then was formerly due to him without the Lords consent and for the same reason could they not alien the whole tenancy to binde the Lord without his expresse licence saving the opinion in the booke of Assizes 20 ass pl. 17. because no tenant could be inforced upon any Lord least he might be his enemy Neverthelesse it seemeth that de facto tenants did usually alien their whole tenancy and although they could not thereby barre the Lords right yet because the Lord could not in such case have the distresse of his own tenant this law saved so much from alienation as might serve for security of the Lords distresse But tenants were not thus satisfied the Lords would not part with their tenants although the tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all 18 Edw. 1. Westm 3. ca. 1. saving to the Lords their services formerly due and thus the Lords were necessitated to grant licences of alienation to such as the tenants could provide to buy their lands Nor was this so prejudiciall to the Lords in those daies when the publique quiet was setled as it would have been in former times of warre when as the Lords right was maintained more by might and the ayd of his tenants then by law which then was of little power cap. 35. The 35 Chapter I have formerly mentioned in the Chapter concerning the Clergy cap. 36. No man shall be appealed by a woman for the death of any but her own husband The right of appeale is grounded upon the greatest interest Now because the wives interest seemeth wholy to be swallowed up in her husband therefore she shall have an appeale of the death of him onely and such also was the Law in Glanvils time How far this point of interest shall extend to the degrees of consanguinity the Norman Law formerly hath shewen And against whom appeales did lie the Statute at Westminster tels us viz. not onely against the principall West 1. cap. 14 but also against accessories yet not against them till the principall be attainted And because it was ordinary for men of nought to appeale others in a malicious way Westm 2. ca. 13 it was by another law established
we finde that Henry the third about the latter part of his reigne when his government grew towards the dregs he having in the Kingdome two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings Gloss tit Baron but five and twenty Barons and one hundred and fifty of his Clergy Neverthelesse the law of King John was still the same and we cannot rightly read the law in such presidents as are rather the birth of will then reason Fourthly that no ayds were then granted but such as passed under the title Escuage or according there unto for the words are No Escuage shall be demanded or granted or taken but for redeeming the Kings person Knighting of his sonne or marriage of his daughter Nor is the way of assessing in these times different saving that instead of all the knights two onely are now chosen in every County the tenure as it seemeth first giving the title of that order and both tenure and order now changed into that title taken up for the time and occasion Fifthly that it was then the ancient custome and so used in the time of Henry the first that the advice of those then present was the advice of the whole and that their advice passed for a law without contradiction or notwithstanding the Kings negative voice for the words are The matter at that day shall proceed according to the councell of those that shall be present although all doe not come and therefore that clause in the Kings oath quas vulgus eligerit may well be understood in the future and not in the pretertence Last of all though not gathered from the text of this law whereof we treat yet being coincident with the matter it is observable that though the Clergy were now in their ruffle and felt themselves in their full strength yet there befell a posture of state that discovered to the world that the English held not the interest of the Clergy to be of such publique concernment or necessary concurrence in the government of the Kingdome Walsing An. 1297. as was pretended For the Clergy finding assessements of the Laity so heavy and that occasions of publique charge were like to multiply daily they therefore to save the maine stocke procured an inhibition from Rome against all such impositions from the Laity and against such payments by the Clergy and in the strength of this they absolutely refused to submit to ayd Edward the first by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them devided from it and not onely outed of all priviledge of Parliament but of all the priviledge of subjects into the state of praemuniri and thus set them up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry 3d. not satisfied with this ancient and ordinary way of assessement upon ordinary occasions tooke up that extraordinary course of assessement upon all the free men of the Kingdome which was formerly taken up onely in that extraordinary occasion of redeeming of the Kings or Lords person out of captivity and common defence of the land from piracy and under the title of Daneguelt which was now absolutly dead and hanged up in chains as a monument of oppression Neverthelesse it cannot be denied but that in former times the free men were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the law aforesaid of King John doth appeare and whereby its probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the third the fame suiting also with the third observation foregoing doth not a little favour the same for its expresly set down that in lieu of the Kings confirmation of the Charter of liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earles Barons and Knights but also the free men and all the Kingdome gave a fifteenth of all their moveables And thus have I summed up and compared both the copies of the grand Charters of Englands liberties saving two particulars inserted into the Forest laws of Henry the third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the third might as he was advised plead nonage M. Paris An. 1227. and so they might have been choked in their birth but being all consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much bloodshed and themselves into so many troubles to avoyd their own acts unlesse the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loath to publish the same to all men It s a strange vanity in great men to pretend love to justice and yet not indure to be bound thereto when as we see that God himselfe loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the third of this spirit faine they would undoe but could not It s true it was at the first but a Kings charter of confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be voided but by surrender from the whole body Marlbr cap. 5. Having thus summed up the liberties of the subjects and free men of England under this Charter I shall make some appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these prerogatives above all Lords Prerog Reg. cap. 9. The King shall have the custody of fooles and ideots lands for their maintenance and shall render the same to their heires And concerning mad-men and lunaticks cap. 10. the King shall provide a Baylisse for their maintenance rendring account to them when they are sober or to their administrators It is no lesse liberty or priviledge of the people that fooles and mad persons are to be ordered by tutors then children and therefore this may be annexed to the rest of the liberties as well as the other Neverthelesse it seemeth that the Laws tooke them into their regard in respect of their estates which might be abused to the prejudice of the publique rather then out of respect had to their persons Now because there is a difference between the disability
King and complained of that summons as of a common grievance be cause that neither they nor their ancestors were bound to serve the King in that Countrey and they obtained the Kings discharge under his broad Seale accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmaine Stat. Mortm 7 Edw. 1. which was made within the compasse of these times by which it was provided that in case Lands be aliened contrary to that Statute and the immediate Lords doe not seise the same the King shall seise them and dispose them for the defence of the Kinodome viz. upon such services reserved as shall suite 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 then will consist with the safety of the Kingdome This was the doctrine that the sad experience of the later government of Kings in these times had taught the Knighthood of England to hold for the future ages Stat. de Militibus No tenant in ancient demesnes or in Burgage shall be distraimed for the service of a Knight Clerks and tenants in Socage of other Manors then of the King shall be used as they have been formerly Tenants in ancient Demesne and tenants in Burgage are absolutely acquitted from forraine service the one because they are in nature of the Kings husbandmen and served him and his family with victuall the other because by their tenure they were bound to the defence of their burrough which in account is a limbe or member of the Kingdome 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 its 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 blood yet could never obtaine their desire for though their persons might challenge exemption from that worke yet their Lands were bound to finde armes by their deputies for otherwise it had been unreasonable that so great a part of the Kingdome as the Clergy then had should sit still and looke on whiles 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 alwaies uniforme some kind of warres then were holden sacred and wherein they not onely adventured their estates but even their own persons and these not onely in defensive way but by way of invasion and many times where no need was for them to appeare Tenants in Socage also in regard of their service might plead exemption from the warres For if not the plough must stand still and the land thereby become poore and lean Neverthelesse a generall service of defence of the Kingdome 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 maintaine and defend the Kingdome but not compelable to forraine service as the Knights were whose service consisted much in defence of their Lords person in reference to the defence of the Kingdome and many times policy of warre drew the Lords into Armes abroad to keepe 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 Footmen in their Armies Concil Brit. 406. but the better and more wealthy sort of them found armes of a Knight as formerly hath been observed yet alwaies under the pay of the common purse and if called out of the Kingdome they were meere voluntiers for they were not called out by distresse 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 neverthelesse remaining still intire 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 publique often times to raise the people yet the people would give credit as they pleased or if the Kings title were in question or the peoples liberty yet every man tooke liberty to side with that party that liked him best nor did the Kings proclamation sway much this or that way It s true that presidents of those times cry up the Kings power of arraying all ships and men without respect unlesse of age or corporall disability but it will appeare that no such array was but in time of no lesse known danger from abroad to the Kingdome then imminent and therefore might be wrought more from the generall feare of the enemy then from the Kings command and yet those times were alwaies armed in neighbouring Nations and Kings might have pretended continuall cause of arraying Secondly it will no lesse clearly appeare that Kings used no such course but in case of generall danger to the whole Kingdome either from forraine invasion as in the times of King John or from intestine broiles 21 E. 1. rot 81. 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 generall arrayes were not levied by distresse till the time of Edward the first 23 E. 1. Memb. 5. and then onely for the rendezvouz at the next Sea coast and for defence against forraine invasion in which case all subjects of the Kingdome are concerned by generall service otherwise it can come unto no other account then that title prerogative and therein be charactered as a tricke above the ordinary straine Fourthly those times brought forth no generall array of all persons between the ages of sixteen yeeres and sixty that was made by distresse in any case of civill warre but onely by Sheriffs Summons and in case of disobedience by summons to appeare before the King and his Councell which sheweth that by the common law they were not compelable or punishable Lastly though these arraies of men were sometimes at the charge of the King and sometimes at the subjects own charge yet that last was out of the rode way of the Subjects liberty as the subsequent times doe fully manifest And the like may be said of arraies of ships which however under command of Kings for publique service were neverthelesse rigged and payed out of the publique charge The summe of all will be that in cases of defence from forraine 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 then what they ought
or provide for future generations Neverthelesse if all be granted viz. that this Statute is but a present order that the Armes therein are too slight to resist an enemy and the end thereof was onely to enable the Kingdome against Thieves and Robbers yet could not Edward the first pretend to have any power to assesse Armes at pleasure upon occasion of warre for the defence of the Kingdome nor is there any president in story that countenanceth it seeing Henry the third and Henry the second in their course used the rule secundum facultates as had been formerly observed and the rule foregoing tended onely to freemen and their Lands Nor did King John disclaime the same but pursued it and yet if there be any president of prerogative in story which King John had not that King will be looked upon as a King of wonderment I say King John pursued it when he was in the strength of his distemper threatned by the Pope provoked by the French King now ready in the field vexed by his people and himself scarce himselfe summons to defend himselfe themselves M Paris An. 1213. and the Kingdome of England all men that ought to have Armes or may have Armes and such as have no amres and yet arma habere possint let them also come ad capiendum solidatas nostras and accordingly there came a vast number not onely of the Armed men but of the unarmed multitude who afterward were sent to their own home when victuals failed Hitherto therefore King John not above three yeeres before his death held himselfe to the assessment to Armes onely of such as had Lands and at this time of exigency others unarmed were summoned to take Armes from the King with their pay or otherwise they must fight without weapons I am now come to the last generall point which concerneth the executive power of matters concerning the peace within this law touching which the Statute inforceth this that Constables in every Hundred and Franchise shall have the view of Armes and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy whereby it seemeth manifest that hitherto no law or custome was made against any for default of Armes but onely such as held by that tenure and therefore they had a shift to cause them to sweare to maintaine Armes and so might proceed upon defaults as in case of perjury and that the Parliament was still loath to set any certaine rule for penalty and absolutely declined it and left it under a generall periculo incumbente which its likely men would rather eschew by obedience then adventure upon out of a daring spirit unlesse their case was very cleere within the mercy of common reason and therefore such cases were left to speciall order of the Parliament rather then they would deliver such a rod as determining power was over into any uncertaine hand what ever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments order into the directory of Edward the first which thing reacheth farre for then in order thereunto the whole Militia of the Kingdome must have been under his safe command and whether it ever entred into the conceipt of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to us viz. Edw. 1. and from us by our Royall Seignory to defend force of Armes and all other force against our peace at all times that we shall please and to punish according to the laws and usages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound us to ayd as their good Lord alwaies when need shall be Two things are concurrant with this which is the body of the Statute if such it be the one is the preface or the occasion and the second is the conclusion upon the whole body of the same The preface first set down the inscription or direction of the Law not to the people but to the Justices of his bench and so it s in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certaine persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earles and Barons that in all Parliaments treaties and other assemblies which shall be had in the Kingdome of England for ever after all men shall come thereto without force and without Armes well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earles Barons and Cominalty being assembled to advise upon this matter nous eiont dit saith one coppy and nous eions dit saith another coppy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principall one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the bench and there enrolled and this is dated the 30. of October in the seventh yeere of his reigne which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon record in nature of a claime or protestando for saving the prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his owne that it might be more carefully nursed against the blast of time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civill affaires and so referred it to the Kings care to provide against imergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suite with the posture of affaires then in course for the Welsh warres were now intermitted and a quiet of three yeeres ensued in the middest of which Souldiers having liberty to doe nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsell
unlesse as their ancesters with weapons in their hands nor worthy of the presence of a King under other notion then as a Generall in the field and themselves as Commanders that are never a la mode but when all in Iron and Steele I say to make a Law that must suddenly binde men from riding or being armed when no man thought himselfe safe otherwise was in effect to expose their bare necks to the next turne of the Sword of a King that they did not overmuch trust and the lesse in regard he trusted not them I doe not wonder therefore if the Parliament liked not the worke but left it to the King to provide for the keeping off breaches of the peace and promised there assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the first yet it was not to all intents nor did it continue for besides the Statute of Torniments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probabilty was made after that law last before-mentioned the Statute at VVinton made after this Law nigh six yeeres space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said act And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chiefe moderatorship of warre and peace within the Realm of England resteth hitherto upon the Parliament next under God and in the King no otherwise then in order to the publique the rule whereof can be determined by no other Judge then that which can be intended to have no other respect then the publique good and which is the abridgement of the large volume of the Kingdom A summary conclusion ANd thus have I brought the shape of English government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish tempests the rocks of Norman invasion and the Quicksands of Arbitrary government under Popes and Kings to the Haven much defaced it is I confesse by the rage of time and yet retained the originall likenesse in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over free men Then by flattering of the free men into their designes hovered above them all but not being able to maintaine their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious then others and they againe more populer then them seeke severall interests And thus Kings aided by their party to a Supremacy which they were never borne to and it by them into a preheminence above their Peeres which neither law nor custome ever gave them are of Moderators in the Councell of Lords become moderators of those Councels and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the free men by extorsion and opression as Lords over tenants yet could they never prevaile over them as free born subjects to gaine their consent to give their right or the law up to the Kings beck but still that remained arbiter both of King and people and the Parliament Supreame expounder and Judge both of it and them Other argument hereof there will be little need Bract. lib. 2. c. p. 16. besides what hath formerly appeared then what we finde in Bracton who wrote in the time of Henry the third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earles and Barons Earles according to their name Comites are the Kings associates and he that hath an associate hath a master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unlesse they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the State of an English King in Henry the thirds time I shall adde hereto a concurrent testimony of a Lawyer also in Edward the first time Although saith he the King ought to have no equall in the Land Miror Just p 9. yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and party the King by right ought to have companions to heare and determine in Parliament all VVrits and plaints of wrongs done by the King the Queen or their childrsn and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it selfe unto which the Royall assent was added Edw. 2. and the same sealed with an Oath in the solemne stipulation made by Kings at their Coronation with the people then present in the name of the whole body the summe whereof is wont to be propounded to the King in this manner Remonstr Parliament novem l. 2. An. 1642. though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customes to them granted by the ancient Kings of England your righteous and godly predecessours and especially to the Clergie and people by the glorious King St. Edward your predecessour The Kings answer I doe them grant and promise 2. Will you keep to God and the Church and the Clergie and the people peace and concord sincerely according to your power The Kings answer I will doe it 3. Doe you grant to hold and keep the Laws and rightfull Customes which the Comonalty of your Realm shall have chosen and to maintaine and inforce them to the honour of God after your power The Kings Answer I this doe grant and promise In few words the King promised to keep the lawes already made the peace of his Kingdome and the Laws to be agreed upon by the commonalty the same in subsistance with that of Henry the first VVilliam the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chaine of Gold a serious memoriall of the Kings duty as he is a man and a glorious ornament to him as a King If then the King be under the law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peeres Hitherto certainly an English King is but Primus inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to worke the people to
regard their own liberties in which the Lords had first wrapped up their own claimes Thus comes the counsels of such as have been notoriously exorbitant to be scanned and to bring these into frame all runne out of frame the Barons warres arise and thrive according as interests doe concenter more or lesse the issue is like that of a drawn battaile wherein he that continueth last in the field is glad to be gone away and so the Title is left to be tried upon the next advantage that shall arise Yet had Kings gotten one step forwards to their designe which was that they now had to deale with a divided Baronage It was the birth of ambition and it was nourished by the same milke for those that side with the King are become Magnificoes next to the Kings person and the sole managers of all the great affaires of State concurrant with their own designes under-board But the other Lords are in account rurall standing further off and looking on at a distance are laid away as supurfluous and as they themselves are out of the game of great men so grow they mindlesse of their interest in the great affaires yet of these there is diversity for some sport themselves in their condition others observe the irregular motions of those above and watch their owne time This was the first advance of that society which was afterwards called the Privy-Councell being a company of choise men according to the Kings bent unto whom the consideration of all the weighty affaires of the Kingdome is committed but nothing can be concluded without the Kings fiat which regularly should follow upon the premisses according to the major vote but more ordinarily suteth with that which best suteth with his pleasure And now are Parliaments looked on as fatall or at the best but as heavy dull debates and inconvenient both for speed and secrecy which indeed are advantages for weake and unwarrantable counsels but such as are well grounded upon truth and strength of reason of State care not to behold the clearest noon-day and prevaile neither by speed nor secrecy but by the power of uncontrolled Reason fetcht from truth it selfe The grand Councell of Lords also are now no lesse burthensome For though they were not able to prevaile against the private designes of an arbitrary Supremacy yet doe they hinder the progresse tell tailes to the people and blot the names of those that are of that aspiring humour which once done like that of Sisiphus they have no other end of there labour then their toile Thus perished that ancient and rightly honourable Grand Councell of Lords having first layd aside the publique then lost unity and lastly themselves besides the extreame danger of the whole body For the sence of State once contracted into a Privy councell is soon recontracted into a Cabinet councell and last of all into a Favourite or two which many times brings dammage to the Publique and both themselves and Kings into extream praecipices partly for want of maturity but principally through the providence of God over-ruling irregular courses to the hurt of such as walke in them Nor were the Clergy idle in this bustle of affaires although not very well imployed for it is not to be imagined but that these private prizes plaied between the Lords Commons and King laid each other open to the ayme of a forraine pretention whiles they lay at their close guard one against another and this made an Ecclesiasticall power to grow upon the Civil like the Ivy upon the Oake from being servants to friends and thence Lords of Lords and Kings of Kings By the first puting forth it might seem to be a Spirituall Kingdome but in the blosome which now is come to some lustre its evident to be nothing but a temporall Monarchy over the consciences of men and so like Cuckows laying their egges in nests that are none of their own they have their brood brought up at the publique charge Neverthelesse this their Monarchy was as yet beyond their reach it was Prelacy that they laboured for pretending to the Popes use but in order to themselves The cripple espied their halting and made them soon tread after his pace he is content thty should be Prelates without measure within their severall Diocesses and Provinces so as he may be the sole Praelatissimo beyond all comparison and undoubtedly thus had been before these times destroyed the very principles of the Church-government of this Kingdome but that two things preiudiced the worke the one that the papalty was a forraine power and the other that as yet the Pope was entangled with the power of Councels if he did not stoop thereunto The first of these two was the most deadly Herbe in the Pottage and made it so unsavoury that it could never be digested in this Kingdome For Kings looking upon this as an intrenchment upon their prerogative and the people also as an intrenchment upon their liberties both or one of them were ever upon the guard to keep out that which was without and would be ruled neither by Law nor Councell And thetefore though both Kings and people yeelded much unto the importunity of these men and gave them many priviledges whereby they became great yet was their greatnesse dependant upon the law of the Land and vote of Parliament and though they had the more power they neverthelesse were not one jot the more absolute but still the law kept above their top I deny not but they in their practice exceeded the rule often and lifted themselves above their ranke yet it is as well to be granted that they could never make law to bind the Church-men much lesse the Laity but by conjunction of the grand councels both for Church and Common-wealth affaires nor could they execute any Law in case that concerned the liberty or propriety of either but in a Synodicall way or as deputed by the Parliament in that manner And therefore I must conclude that in these times whereof we treat the principles of Church-government so farre as warranted by law were in their nature Presbyteriall that is both in making laws and executing them Bishops and Archbishops were never trusted with the sole administration of them but in and by consent of Synods in which the Clergy and Laity ought to have their joynt vote and all power more or contrary hereto was at the best an usurpation coloured by practise which was easily attained where there was a perpetuall moderatorship resting in the Bishop and over all the Pope the King Lords and Commons in the mean while being buried in pursuit of severall interests elsewhere To make all semblable the free men met with the sad influence of these distempers as wel from the King and Lords as the Clergy Kings to save their own stake from the Pope remitted of that protection which they owed to their Subjects and let in upon them a flood of oppressions and extortions from the Romish and English Clergy and
Charter and other Statutes during the reignes of these Kings SHattered asunder by broiles of Civill wars the free men having laid aside that regard of the ancient mutuall covenant and bond of Decenners are now become weake and almost inthralled to the lust of Kings Lords Pope and English Clergy and therefore it s 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 severall 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 coole sent yet they still retained the prey within their view Sometimes they were cast farre 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 into the Publique Theater The Historian saith it was the same with that of King Johns framing and yet by comparing them together we finde 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 passe along The first Chapter concerned the Church of which sufficient hath been spoken Mag. carta The Free men shall enjoy these liberties to them and their heires for ever cap. 2. The heire in Knightservice shall pay the ancient reliefe cap. 3. That reliefes 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 payed in Horses Armes c. but in after times all was turned into money which was more beneficiall for all cap. 4. Vide Stat. de Wardis 28 E. 1 Lords shall have their Wards bodies and Lands after homage received untill the full age though the Ward be formerly Knighted Glanvil lib 6. cap. 1. 4. The Law of Wardship may seem more anciently seated in this Kingdome then the Normans times for if the Statutes of Scotland beare 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 distresse that it could not be in the power of the Lord to distraine till he was possessed of the service Stat. Marlbr cap. 6 7. And if by fraudulent conveyance the heire did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appeare the Lord might seise the Lands unlesse in case of Wardship per cause de guard Stat. Marlbr cap. 16. prerog Reg. cap. 3. And in case the Lord would hold the Wardship longer then the full age of the heire an Assize did lie against the Lord for the heire could not enter without livery But if the heire were of full age at the time of the ancestors death the Lord could not enter the Lands and yet he should have a reliefe and the primer seisin And if the heire entered the Lands before homage done he gained no free hold Prerog Reg. cap. 13. though he were Knighted before as this Law provideth for it may seem that these times of civill warre brought forth a tricke 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 warre was good or evill and yet reason might induce a conceit that he that was thought meet to doe 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 assignes or Committees of Wardships shall preserve the Land c. from waste cap. 5. and the tenants from extortion They shall yeeld up the same stocked if they receive them stocked cap. 6. The first of these is the law of common reason for its contrary to guardianship to destroy that which by their office they ought to preserve As touching the words of the Law the Grantees are omitted in the Charter of King John and also their assignees albeit that doubtlesse they were within the intent and meaning of the Law The matter declares plainly not onely the oppession of Lords upon their Wards but also the corruption even of the law it selfe that at the first aimed at the good of the publique and honour of Knightservice but now was degenerated into the base desire of profit by making market of the Wards estates and marriages that brought in strip and wast of Estates and niggardly neglect of the education and training up of the persons of the Wards and an imbasing of the generation of mankind and spoile of times Nor did these times ever espie or provide against the worst of these but onely endeavoured to save the estate by punishing the wasters in dammages by this law and by forfaiture of the Wardship by a Law made in the time of Edward the first Stat. Gloc. cap. 5. and this as well for waste done during the time of the custody as in the life time of his ancestors by another law in Edward the firsts time Stat. de vasto 20 E. 1. And because the Escheators and their under Officers used to serve themselves out of the estates of minors before they certified to the King his right and those were not within the Law of Magna Carta or at least not so reputed Artic. sup cart cap. 18. It was therefore afterwards provided that these also should render dammages in a Writ of wast to be brought against them The marriage of Wards shall be without disparagement cap. 7. It was an ancient law amongst the Germans and the Saxons brought it hither Tacitus mor. Germ. and as a Law setled it that marriage must be amongst equals but the Danes and Normans sleighted it and yet it continued and was revived Now as the Lord had the tuition of the Ward instead of the ancester so had he the care of the marriage in such manner as the ancester might have had if he had lived For in case the Ward were stolne and married the delinquent suffered fine and imprisonment Or if the ward married without the Lords consent he shall have the double value S at Merton cap. 6. and hold the land over till satisfaction But in case the Lord marrieth the Ward within fourteene yeeres of age to its disparagement cap. 7. he shall lose his Wardship thereby And if the Ward refuseth to accept of a marriage tendred by the Lord before her age of 16 yeeres West 1. c. 22. the Lord shall hold the Lands till he have received the full valew and in case where one tenant holdeth of