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
adoration This hath mounted up Kings to the top more then their own ambition and made them undertake what they ought not because we esteem more highly of them then we ought I speak not against due but undue obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion Concil Brit. p. 333. as they did many times and advised others to doe the like Nor had Kings by degrees become beyond controlle and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldnesse to set a Law upon the exorbitancy of their King M. Westm An. 854. as in that case of Aethelwolfe and his Queen amongst others may appeare but that was like some enterprises that owe more to extremity of occasion then to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Free men called anciently Frilingi or free born or such as are borne free from all yoke of arbitrary power and from all Law of compulsion other then what is made by his voluntary consent for all free men have votes in the making and executing of the generall Laws of the Kingdome In the first they differed from the Gauls of whom its noted that the Commons are never called to councell Caes Com. lib 6. nor are much better then servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt Tacitus and therefore those that were elected to that worke were called Comites ex plebe and made one ranke of free men for wisdome superiour to the rest Another degree of these were beholding to their riches and were called Custodes Pagani an honourable title belonging to military service Limb. in 4. fo 71 and these were such as had obtained an estate of such valew as that their ordinary armes were a Helmet a Cote of Maile and a guilt Sword The rest of the free men were contented with the name of Ceorles or Pagani viz. rurall clownes who neverthelesse were the most considerable party both in war and peace and had as sure a title to their own liberties as the Custodes pagani or the Countrey Gentlemen had CHAP. XIX Of the villanies amongst the Saxons THe most inferiour ranke amongst the Saxons were those that of latter times were called villains But those also anciently divided into two degrees the chiefer of which were called Free-lazzi These were such as had been slaves but had purchased their freedome by desert and though they had escaped the depth of bondage yet attained they not to the full pitch of free men for the Lord might acquit his own title of bondage but no man could be made free without the act of the whole body Tacitus And therefore the Historian saith that they are not multum supra servos or scarce not servants They are seldome of account in any family never in any City But in Kingdomes sometimes advanced above the free men yea above Nobles Those are now adaies amongst the number and ranke of such as are called coppy holders who have the priviledge of protection from the Laws but no priviledge of vote in the making of Laws The most inferiour of all were those which were anciently called Lazzi or slaves those were the dregs of the people and wholly at the will of their Lord to do any service or undergoe any punishment Tacitus and yet the magnanimity of the Saxons was such as they abhorred Tyranny and it was rarely used amongst them by beating torture imprisonment or other hard usage to compell them to serve they would rather kill them as enemies and this wrought reverence in these men towards their Lords and maintaintd a kind of generosity in their minds that they did many brave exploits and many times not onely purchased their own freedome but also brought strength and honour to the Kingdome And though the insolency of the Danes much quelled this Saxon Noblenesse yet was it revived again by the Confessors Laws which ordained that the Lords should so demeane themselves towards their men that they neither incurre guilt against God nor offence against the King or which is all one to respect them as Gods people and the Kings subjects And thus much of the severall degrees of men amongst the Saxons being the materials of their Common-weale a modell whereof in the making and executing of the Laws and manner thereof now next ensueth CHAP. XX. Of the grand Councell of the Saxons called the Micklemote IT was originally a Councell of the Lords and Free men afterwards Tacitus when they assumed the title of a Kingdome the King was a member thereof and generally president therein but alwaies intended to be present though actually and in his own person by emergent occasions he may be absent and sometimes by disability of his person he be unmeet to Vote or be President in such an assembly as it was in the Councell at Clano or Cleve in Wiltshire when the great case between the Monks and married Priests was concluded Malmesb. gest Reg. lib. 2. cap. 9. Lib. 5. An. 978. the King was absent as the story saith because of his minority and yet if writers say true he was then in the sixteenth yeere of his age The Lords were also neverthelesse in the same condition of priviledge as formerly and though it appeareth that the Kings had gotten the priviledge of summoning the grand meeting in his own name yet it was by advice of the great men and being met their votes were no other in value then as formerly for all their Laws were ex consilio sapientum and for ought can appeare out of antiquity the vote of the meanest continued as good as of the greatest Tacitus arbitrium est penes piebem And thus the Micklemote or Wittagenmote of the Saxons in England continued in the King Lords and Free men by the space of one hundred and fifty yeeres and in some parts of England nigh two hundred yeeres before ever the Roman Bishops foot entered or the Roman Clergy crept into the Councels of State Afterwards the Prelates were admitted de bene esse for advice as sapientes and continued by allowance how Canonically ipsi viderint for I understand it not especially as the Scripture was then expounded Nemo militans Deo implicet negotiis saecularibus yet if they be allowed what in those daies they ordinarily took up a degree of policy above devotion that knot is also soon untied I say they entered as Sapientes not as Prelati or Church-governours for then they had holden the same power in Church-matters agitated in the Wittagenmot that
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
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
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
of all Glanvil lib. 14. cap. 1. although the most heynous of all was in the same condition As touching breakers of prison in these times it was felony for what cause soever they were committed and therefore their imprisonment was without baile for who so makes no conscience of breaking the prison his credit will little availe yet it must be acknowledged that the Law imprisoned few without baile in those foregoing times but in case of felony or execution but afterwards the cases of commitment being ordinary even in matters of mean processe and because mens credits waxing weake by the weaknesse of their estates now wasted by the civilwars there fore in Edward the seconds time a law was made to restrain the felony in such cases onely to the breach of prison by such as were committed for felony And as touching imprisonment upon excommunication its manifest that within five yeeres before the making of this law it was complained that such were set at liberty by the Kings Writ de homine replegnando without the Bishops consent Addit M. Paris But now the Clergy had gotten the day of the Law which did much decline from that guard of imprisonment but hated perpetual imprisonment Nor was this complaint grounded upon any other law then that of the Canon for the common law ever held the supreame cognisance of Excommunication within its own power as upon the Writ de quare excomunicato may appeare Other crimes are yet also by this law allowed baile such as are persons indicted of larceny before Sheriffs c. persons imprisoned upon slight grounds Receivers and Accessories before felony Trespassers persons appealed by provers after the death of the approvers If baile be granted otherwise then the law alloweth the party that alloweth the same shal be fined imprisoned render dammages or forfeit his place as the case shall require And thus the iniquity of the times was so great as it even forced the subjects to forgoe that which was in account a great liberty to stop the course of a growing mischiefe Spreaders of false news West 1. cap. 34. Publishers of false news whereby discord or slander may arise between the King and his people shall be imprisoned till he produce the relator It is therefore an offence against the Crown to procure or maintaine an ill conceipt in the King of the people or an ill conceipt in the people of the King and it s as well an offence against the Crown for the King to conceive ill of his people as for them of him But all must be grounded upon falshood for truth respects no mans parson all men are equally bound by that woe if they call good evill or evill good although difference must be made in the manner of representation And upon this ground of maintaining strife was a law made also against conspiracy to make or maintaine indictment 33 Edw. 1. suit or quarrell and it was likewise finable Merton cap. 3. Redisseisors and post disseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly redisseisin was under no other Law then that of disseisin but by this law made a matter belonging to the Crown and tried before the same Judges that had the power of inquiry of all offences against the Crown The penalty of imprisonment in this case was to be without baile Marlbr cap. 8. but onely by the Kings Writ de homine replegiando and yet even thus the penalty was not sufficient to restraine the offence and therefote a law was made to abridge the power of that Writ West 2. cap. 26. as touching such offender and they became irremediable as touching their liberty by that Writ besides that upon recovery had against them they lost double dammages Trespassers upon Parks West 1. cap. 20. Trespassers in Parks and Fishponds convicted within a yeere and a day shall render dammages suffer imprisonment for three yeeres and give security of good behaviour for time to come If any beasts be taken in a felonious manner he shall be proceeded against as a robber From the times of King Steven the Lords and great men endeavoured to advance their power and greatnesse so high above the meaner sort of free men as they made Kings continually jealous of their power Castles had been a bone of long contention between them but they being for the most part taken away the strife was about prisons and power to imprison offenders and that also after much opposition they layd aside yet the violence of these times being such as though felonies were somewhat dreaded trespasses of the highest nature were little regarded such as were riotous hunting in their Parks and fishing in their waters The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing but this was also denied them Merton cap. 11. though by Henry the third in his first time when as yet the government was not worsted by projects of arbitray power or corrupt counsels of forrainers nor himselfe a man able to sway with the Lords in matters that were of doubtfull prerogative And to speake indifferently its better for the liberty of the subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by law then by the warrants of great men especially in their own cases and therefore in this matter the Kings prerogative was a patron to the freemens liberty Neverthelesse these great men give not thus over their game for though in times of publique calamities little place is left for pleasure to any man yet when times are grown to more quiet pleasure revives and the great men renew their motion and though they could not obtaine prisons to their own use as they endeavoured at the meeting at Merton yet now they obtaine the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the losse of their pleasure And yet this law sufficed them not but they obtaine a further priviledge An. 21. Edw. 1. that such persons as are found so trespassing and refusing to submit may be killed without perill of felony CHAP. LXX Of the Militia during these Kings reignes THe Souldiery of England may be considered first in regard of the persons Secondly their armes Thirdly their service The persons were as formerly not onely such as were milites or tenants in Knight service but also such as served at the plow and concerning them both it is to be considered what the law made by Edward the second holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood Stat. de Milit. 1 E. 2. if they shew not cause to the contrary Regularly all tenants by Knightservice ought to be Knights but de facto were not so as in these times there was a
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
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
afterward it was punished by fine and imprisonment by a law made by Alfred as he provided in like manner for other Church lawes The times anciently were not so zealous for due observance of Divine worship False worship unlesse by the Churchmen who were the leaders therein Canon Apost cap. 10. a forraine Canon was made to enforce that duty long before but it would not down with the rude Saxons they or the greater sort of them were content to come to Church onely to pray and heare the word and so went away this is noted by that ancient writer in nature of an imputation Bed hist lib. 3. cap. 26. as if somewhat else was to be done which they neglected this somewhat was the masse which in those daies was wont to be acted after the Sermon ended Mag. Cent. 7. cap. 6. and its probable that if the Nobles were so ill trained up the inferiour sort was worse and yet finde we no law to constraine their diligence or to speake more plainly it s very likely the Saxons were so resolute in their worship as there was either little need of Law to retaine them Concil Brit. p. 306. or little use of Law to reclaime them for it s observed in their late Psalter that the Roman Clergy was not more forward to Image or Saint-worship then the people were backward thereto and therein shewed themselves the true seed of their ancestors in Germany of whom it s observed that they indured not Images Tacit. Mor. Germ. but worshipped a Deity which they saw sola reverentia Sorcery and Witchcraft they had in abomination yet it was a sinne alwaies in a myst and hard to be discerned but by the quicksighted Clergy and therefore it was left to their censure Concil Brit. 246. An. 745. as a sinne against the worship of God This Ethebald the Mercian King first endowed them with and they alone exercised the cognisance thereof till Alfreds time who inflicted thereupon the penalty of banishment Ibid. 377. but if any were killed by inchantment the delinquent suffered death by a Law made by Aethelstan Ibid. 403. An. 928. And thus by degrees became one and the same crime punishable in severall jurisdictions in severall respects Concerning perjury Perjury the Prelates had much to doe therewith in future times and they had the first hint from Ina the Saxon Kings grant to them of power to take testimonies upon oath Ll. Sax. fo 4. as supposing that the reverence that men might beare to their persons and functions would the rather over-aw their tongues in witnessing that they would not dare to falsifie least these knowing men should espie it and forthwith give them their doome But no positive Law allowed them that power of sentence till Aethelstans law gave it An. 928. and upon conviction by the same Law distested the delinquents oath for ever Sacriledge Sacriledge comes in the next place being a particular crime meerly of the Clergy mens exemption and naming for before they baptised it you might have well enough called it theft oppression or extortion This crime the Prelates held under their cognisance by vertue of that generall maxime Concil Brit. p. 127. An. 610. Ibid. 265. that all wrong done to the Church must be judged by the Church The first time that I can observe they challenged this power was by Egbert Archbishop of Yorke in the seventh Century But nothing was more their own then Simony Simony and that may be the reason why we finde so little thereof either for the discovery or correcting thereof All former crimes were in their first act destructive to the Church but this advantagious Concil Brit. 263. and therefore though the Canons roare loud yet the execution is not mortall because it s bent against the dignity and not the gaine and although the Canon would not that any Presbyter should be made but presented therewith to some place to exercise his function in yet it serveth not for those times when men were sent forth rather to make flocks then to feed flocks And yet the theame of marriage was the best dish in all their entertainment Matrimonial causes they had the whole common place thereof with the appurtenances within the compasse of their text before ever it attained the honour of a Sacrament It was a branch of Moses Law whereof they were the sole expositours and so seemeth to be cast upon them by a kind of necessity as an orphan that had no owner Neverthelesse a passage in Eusebius seemeth to repose this trust in the civill Magistrate for he relateth out of Justin Martyr concerning a divorce sued out by a godly Matron long before the Prelacy got into the saddle or the Clergy had the power of Judicature And whereas Lucius taxed Vrbicius the Magistrate for punishing Ptolomy who was guilty of no crime worthy of his cognisance in that kind amongst other crimes enumerated by him whereof Ptolomy was not guilty he nameth the crimes against the seventh Commandement intimating thereby a power in the Judge to have cognisance of those crimes as well as others But the Prelacy beginning to mount nibled at it in the second Century but more clearly in the fourth when the persecutions were allayed and men of learning began to feele their honour and never left pursuit till they had swallowed the baite and exercised not onely a judiciary power in determining all doubts and controversies concerning the same but challenged an efficienciary power in the marriage-making This garland Austin brought over with him and crowned the Saxon Clergy therewith Beda hist l. 1. cap. 27. as may appeare by his Queres to Pope Gregory and thus the Saxons that formerly wedded themselves became hereafter wedded by the Clergy yet the civill Magistrate retained a supreame legislative power concerning it as the joynt marriages between the Saxons Britons and Picts doe manifest for it s said of that work that it was effected per commune concilium assensum omnium Episcoporum procerum comitum omnium sapientum seniorum populorum totius regni per praeceptum Regis Inae and in the time of Edmond their King were enacted Laws or rules concerning marriage Concil Brit. 219. Concil Brit. p. 427. An. 944. and so unto the Lay power was the Ecclesiasticall adjoyned in this work The Clergy having gained the principall with more ease obtained the appurtenances such as are Bastardy Adultery Fornication and Incest There was some doubt concerning Bastardy Bastardy because it trenched farre into the title of inheritance and so they attained that sub modo as afterward will appeare The Lawes of Alfred and Edward the elder allowed them the cogisance of Incest Incest Concil Brit. p. 392. An. 905. although neverthelesse the civill Magistrate retained also the cognisance thereof so far as concerned the penalty of the temporall Law Adultery and Fornication they held without controle yet
or no power by the Canon that was not under their controle neither in admission or deprivation of Presbyters or others determining of any cause Concil Brit. 260 263. nor passing sentence of excommunication and this could not but much hinder the hasty growth of Antichrists power in this Kingdome nor could it ever be compleated so long as the Synods had the chiefe power Neverthelesse the inthralled spirits of the Clergy and terror of the Papall thunderbolt in continuance of time surmounted this difficulty and Synods became so tame and easily led as if there had been but one Divell to rule amongst them all For if any quick eye or active spirit did but begin to peep or stir the Legate e latere soon reduced him into ranke and kept all in awe with a sub poena of unknown danger A third errour was the allowing of peculiars and exemptions of Religious Houses from ordinary jurisdiction and this was an errour in the first concoction a block in the way of Prelacy and a clogge to keepe it down This errour was soon felt and was occasion of much mutiny in the body Ecclesiasticall but exceeding profitable for Rome not onely in point of Revenue by the multitude of appeales but especially in maintaining a party for the Roman See in case the Prelacy of England should stumble at the Supremacy of Rome Otherwise it seemed like a wenne upon the body rather then any homogene member and without which certainly the English Prelacy had thriven much better and the Roman chaire much worse In all which regards I must conclude that the Prelaticall government in England was as yet like a young Bear not fully licked but left to be made compleat by time and observation CHAP. XVI Of the Saxon Common-weale and the government thereof and first of the King HAving already treated of the Saxon Church in order I am now come to the Republique which in all probability will be expected to be suitable to their originall in Germany whereunto having relation I shall first fall upon the persons and degrees abstractively then in their assemblies and lastly of their Laws and customes The Saxons in their first state in Germany were distributed into foure classes viz. the Nobles the free-men the manumitted persons and the bond-men Under the Nobility and from them arose one that was called a King of whom I shall speake a part the two last differed onely in the bare liberty of their persons and therefore may be comprehended under one head as they were in their originall A King amongst the Saxons in probability was anciently a Commander in the field an Officer pro tempore and no necessary member in the constitution of their state for in time of peace when the Common-wealth was it selfe the executive power of the Law rested much in the Nobility but in times of warre and in publique distractions they chose a Generall and all sware obedience unto him during the war Witikum gest Saxon. lib. 1. it being finished the Generall laid down his command and every one lived aequo jure propria contentus potestate But in their transmigration into Britaine the continuance of the war causing the continuall use of the General made that Place or Office to settle and swell into the condition of a King and so he that was formerly Dux became Rex there being no more difference in the nature of their places then in the sence of the words the one signifying to lead the other to governe so as he that formerly was a servant for the occasion afterwards became a servant for life yet clothed with Majesty like some bitter Pill covered with Gold to make the service better tasted Nor was the place more desirable if duly considered For first his Title rested upon the good opinion of the Free-men and it seemeth to be one of the best Gems of the Crown for that he was thereby declared to be most worthy of the love and service of the people Yet was the ground of their election so uncertaine as a man might imagine that sometimes there appeared more of the will then of the judgement in it that it might be said to be the more free for they neither excluded women nor children further then present occasions lead them The West-Saxons deposed Seburg their Queen because they would not fight under a woman M. Westm An. 672. M. Westm An. 912 919. Tacit. Cragius but the Mercians obeyed Elfled their Queen and under her fought valiantly with good successe against the Danes imitating the custome of the Sitones or Norwegians in Germany as they might borrow it from the Lacedemonians A custome it was so much the more honourable by how much it demonstrateth freedome and that the worth of the people rested not so much in the head as it s diffused through the whole body And it seemeth to runne in the blood of an English man even to this day to be as brave under a single Queen as under the most valiant King if not much more and still to strive to be as famous for the defence of Majesty whereever they set it as the Britons were of old Nor were they different in their respect of age from that of the sex for though after the death of Edmond Edwin or Edgar were to have succeeded in the Crown by the right of descent yet the States would not admit them because they were minors but the Mercians admitted Kenelme a child of seven yeeres old to be their King They likewise excluded not bastards till the Clergy interposed for they having wound themselves into the Councels of the Kingdome procured a constitution to back them in the election of Kings Legitime c. Let the Kings be legally chosen by Priests and Elders and not such as are begotten by adultery or incest Which constitution was made in a Legatine councell Mag. cent 8. cap. 9. An. 747. and confirmed by great Offa The rule of their election was the same with that in Germany viz. to elect the chiefest out of the chiefest family that is Tacitus the chiefest for worth not by descent yet the honour they bare to their brave Kings who had deserved well made some to honour their posterity and to chuse their eldest after their decease and so in time Crownes were taken up by Custome and election often times subsequent was accounted but a ceremony unlesse the people will dispute the point Secondly this election was qualified under a stipulation or covenant wherein both Prince and people were mutually bound each to other the people to defend their King which the Historian saith was praecipuum Sacramentum Tacitus and the Prince to the people to be no other then the influence of the Law sutable to that saying of Aethelstan the Saxon King Concil Brit. p 397. seeing I according to your Law allow you what is yours doe you so with me as if the Law were the sole umpire between King and people and unto
accesse of power not to make dispence with or alter Laws but to execute and act the Laws established and against this power there was no rising up so long as it like an unfethered Arrow gadded not at random It s true the Church men or Prelates checked them often but could never give them the mate For peace sake Kings many times yeelded much yet would no King of Saxon principles allow of any Canon that extolled the Clergies authority above that of Kings and though the placing and displacing of Bishops seemed to be all Ecclesiasticall worke yet would not the Kings altogether connive as the examples of Ina in placing a Bishop in Wels Offa in making two Provinces of one Malmesb. gest pontif lib. 3. gest Reg. lib. 1. cap 4. M. Paris An. 1095 Cenulphus in restoring Polydorus Edfrid in deposing Wilfrid and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion and for their own safety sake the Prelats thought it wisdome for them sometimes to stoop to that power that at other times they must be beholding to and therefore though in Synodicall disputes they would hold with the Canon yet in matters of action would suite with the occasion and thereby taught Princes to account of Canons but as Notions and politiquely to put the honour of Commissioners upon these men thus the current of both powers passing in one chanell made the people drinke double Beere at once the turns both of Pope and King were competently served and these men had the honour of the two-handed Sword and all seemed composed into a faire compromise But the Popedome finding its authority becalmed indured this but as a burden till Pope Nicolas the seconds time who by the like trick commended all to the Crown as from the Papall benediction For Edward the Confessor upon his foundation of the Abby of Westminster sent to the Pope for his allowance and confirmation of what he had done or was to doe and to make way for the more favour sent presents and a confirmation of Romescot The Pope was so inflamed with such an abundant measure of blessing as he not onely granted the Kings desire but also discharged that Abbey from ordinary jurisdiction made it a peculiar subject onely to the Kings visitation and concluded his Bull with this horne Vobis vero posteris vestris regibus committimus advocationem tuitionem ejusdem loci omnium totius Angliae Ecclesiarum Concil Brit. p 634. An. 1066. vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I finde not but he could never make better use then by way of estoppel unlesse he meaned to sacrifice his own right as a thankoffering to a shadow which I finde not that he or his next successors ever did but as touching the Laity Histories doe not touch upon any conceit of withdrawing Monarchicall power It s true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter Ll. Canut cap. 67. or by the Princes faire complyance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude that a Saxon King was no other then a primum mobile set in a regular motion by Lawes established by the whole body of the Kingdom CHAP. XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in war and in peace That ranke of men was continued by three means viz. by birth or blood by valour and by wisdome the first was rather at the first a stemme arising out of the first two then a different degree or kind for Noble blood was at the first innobled by brave actions afterward continued in their honour to their posterity till by as base courses it was lost as it was gained by worthy atchievements these were called Adelingi The nobility of action consisted either in matters of war or of peace Those of peace arose principally from wisdome which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of war arose somewhat from valour or courage with wisdome but more from good successe for many brave and fortunate Commanders have not been very daring Ll. Edw. cap. 35. Nitard lib. 4. and the bravest spirits though wise have not been ever honoured with good successe these were called Heretochii Neverthelesse all these names or titles were used promiscuously in following times and all called Nobiles but both that and Duces Satrapae and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this Honourable band viz. The great Officers of the Kings houshold and their attests are found amongst the Kings charters amongst the Nobles And that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but master of some may by a little curtesie prevaile over all This starry Heaven had severall Orbes Tacitus some so high as in common esteem they were next the Imperiall Heaven having a tincture of Royall blood and at the next door to the Throne Others though not of so clear light had neverthelesse no lesse powerfull influence upon the people but rather more by how much more nigher to them Their power in matters of peace or government of the Common-weale was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publique in convocating and directing the people De minoribus rebus consultant principes Tacitus These minora are such as are subservient to the majora and pro hic nunc require sudden order touching any particular part or member of the Common-wealth At other times they visited their severall Territories or circuits hearing and determining matters of controversie and executing judgement according to the known Lawes Principes jura per pagos vicosque reddunt Yet they had comites of the Countrey joyned with them Tacitus whereof afterward This was their course in German Saxony but in England the new stemme of Kingly power arising higher then all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regall order and the Lords executed the same as deputies from and under him designed thereto by Writs and Commissions as its more particularly noted of King Alfred Miror cap. 5. Sec. 1. The Lords thus lessened in their judiciary power carried the lesse authority in their votes and consultations The King was a perpetuall moderator in that worke and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it s a hard thing for one that hath yeelded his heart to admiration to keep it from
instrument of its own restraint for the great men ere they were aware hereby lost one of the fairest flowers of their Garland viz. the judicature or rather the mastership of the life or death of the meaner sort and thereby a faire opportunity of containing them for ever under their aw And no lesse remarkable was the benefit that redounded to this Nation hereby for had the great men holden this power as once they had it it might soon have endangered the liberty of the free men and thereby been destructive to the Fundamentall constitution of the government of this Realme which consisteth in the just and equall participation of these priviledges wherein all are equally concerned This was the triall wherein the people of this Nation were made happy above all other people and whereby the free men as they had the legislative power so likewise had the juridicall and thereby next under God an absolute dominion over themselves and their estates for though this course of triall was first applied to matters of crime yet it soon also seised upon the Common pleas which for the most part was the worke of main import in the Hundred Court and suitable hereunto are the prescriptions which are extant in the Law-books of cognisance of pleas and writs of Assize c. from the times of the Saxons as in that case of the Abbot of Bury amongst others doth appeare 26. aff pl. 24. CHAP. XXXIX Of passing of judgement and execution AFter verdict judgement passed according to the letter of the Law or known custome in criminall matters according to the greatnesse of the offence either for death or losse of member But if the circumstances favoured the delinquent he was admitted to redemption of life or member by fine also setled by Letter of the Law and not left to the Judges discretion If the crime reached onely to shamefull penance such as Pillory or whipping the last whereof was inflicted onely upon bondmen then might that penance be reduced to a ransome Ll. Inae Ll. Canut according to the graine of the offence assessed in the presence of the Judge by the free men and entered upon the roll and the estreat of each ransome severally and apart sent to the Sheriffe This ransome was paid usually unto the King and Lord and the party indammaged or his friends if the case so required Ll. Inae cap. 22. according to the old German rule Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus This course opened indeed a way for mercy Tacitus but through corruption a floodgate to wickednesse in the conclusion Of imprisonment there was little use in the eldest times afterwards it was more used not onely to secure the person to come to triall of Law for miscarriages past but sometimes to secure men against committing of future mischiefe especially if it more concerned the publique I finde but little or no use thereof barely as a punishment nor would their auncestors so punish their bondmen Vinculis coercere rarum est In case of debt or dammage the recovery thereof was in nature of elegit for the party wronged either had the offenders goods to him delivered or the value in money upon sale of the goods made by the Sheriffe and if that satisfied not Ll. Edw. then the moity of the lands was extended and so by moities so farre as was possible salvo centenemento and when all was gone the defendants armes which were accounted as the Nether-milstone or stock of maintenance were last of all seised Ll Alured c. 1. and then the party was accounted undone and cast upon the charity of his friends for his sustinance but the person of the man was never imprisoned as a pledge for the debt no not in the Kings case for Alfred imprisoned one of his Judges for imprisoning a man in that case One punishment of death they had in cases of crime Miror cap. 5. Sec. 1. and that was by hanging or strangling and where the crime was not so great sometimes ensued losse of member or mutilation and in many such cases Excommunication pronounced indeed by the Clergy but determined by the Law which in the first conception was framed in the wombe of the legislative power in Parliament Concil Brit. 105 251 365 420. as may appeare in many laws there made nor was there in those times any question made of the cognisance thereof so long as the Clergy and Laity had charity enough to joyn in all publique Councels CHAP. XL. Of the penall laws amongst the Saxons PAssing the Courts and manner of proceedings till sentence we are now come to the particular Laws that directed the sentence and first of those that concerned criminall offences During the Saxons time the Common-wealth was in its minority the government tender the Laws green and subject to bend according to the blast of time and occasion and according to the different dispositions of governours ages and peoples For though the Saxons were in name our first matter yet not they onely but they having once made the breach open and entered this Island it became a common sewer to the excrescency of those Easterne peoples of the Angles Danes Almains and Goths as their severall Lawes left with us in power doe not obscurely informe us and amongst all the rest the Goths were not the least concerned herein for the Saxon King determining what people shall be holden Denisins in this Kingdome saith that the Goths ought to be received and protected in this Kingdome as sworn brethren kinsmen and proper Citizens of this Common-weale Nor can any Nation upon earth shew so much of the ancient Gothique law as this Island hath Neverthelesse in this mixture of people of severall Nations there being a suitable mixture of Laws as the power of any one of these people 's changed so likewise did their Laws change in power and long it was ere a right temper of one uniforme law could be setled yet in the interim these short remembrances left unconsumed by time I have subjoyned that it may appeare their notions were excellent though somewhat inconstant in their practice Those times were darke and yet so farre as any light appeared the people were to be honoured for their resolution in the defence thereof For there was few of the Commandements of the two Tables which they did not assert by Laws by them made the third and tenth excepted which latter commands the inward man onely and whereof God hath the sole cognisance True it is that the first Commandement containeth much of the same nature yet somewhat is visible The first Commandement and that they bound for whereas in those times the Divell had such power as he did prevaile with some Witchery and those it may be not a few to renounce God and deliver themselves wholly to his owne will they punished this crime with banishment as unworthy of their society that
would communicate with Divels yet if the delinquent had done any mischiefe whereby death ensued the parties punishment was death Ll. Sax. cap 6. yet might all be discharged by ransome and good security for good behaviour for time to come For their worship of God they were no lesse zealous in maintenance of the manner The second Commandement as their forefathers liked not the use of Images or pictures for adoration neither did they and although the clergy in other matters led them much yet in this they were alone for a long time for although the Roman Church had the use of Images above three hundred yeeres before Austins comming yet could not that custome fasten upon the Saxons for the space of above one hundred yeeres after Austins comming notwithstanding the endeavours of Charlemaine and Pope Constantine by his bastard decree begotten upon the dream of the Bishop of Worcester that saw the Virgin Maries picture brought him in his sleep by her selfe and with a command from her that it should be set up in the Church and worshipped Concil Brit. 218. I say it could not fasten any constant practise of Idoll worship nor ever wrest a Law from the Wittagenmot to countenance the same but rather on the contrary they still preserved the memoriall of the second Commandement in the Decalogue even then when as the Romanists had expunged the same out of the number Concil Brit. 364 Ll. Canut c. 5 and they inforced the same by a law of their own making so far as their Clergy or reverence they bare to Rome would allow It hath been formerly observed that the Saxons tooke no note of the vice of prophane swearing and cursing The third Commandement which crime if it were in use as it cannot be otherwise conceited but it was as the times then were must lie upon the Clergymens account for their neglect of teaching the poynt or upon the generall ignorance of those times which understood not the Commandement nor the Scripture For we finde no Canon against it nor scarce any doctrine concerning it but onely in case of false swearing till Anselms time True it is that Chrysostome seemeth zealous against all swearing but that was his personall goodnesse which for ought appeareth died with him And Anselme contending against swearing by the creatures and idle swearing renders his grounds in such manner as it may be well conceived that he understood not the maine Cent. 11. cap. 4. de lege The fourth Commandement I am the rather induced to conceive charitably of those times in regard of their exceeding zeale for the honour of the Lords day which sheweth that so farre as their knowledge would maintaine them they had zeale to make it into action They began this day doubtlesse as other daies according to the custome of their forefathers in Germany Tacitus Nox ducere diem videtur And because they would not allow their secular affaires to trench too nigh that daies devotion they made the Lords day to begin upon Saturday at three of the clocke in the afternoon and to continue till Munday morning Concil Brit. 445. 446. No pastime no not their beloved sport of hunting was allowed during all that time nor no works were to be done but such as concerned the worship of God and those laws they bound with penalty of fine if the delinquent were a free man if he were a bond servant he was to be whipped Nor were these the Laws of one King Ibid. 268 377 404 518 546. or age onely but of the whole currant of the Saxon government and may although darke times they were yet put us in these daies of light to the blush to enter into compare with them for their devotion The fifth Commandement In their conversation with men the Saxons seemed yet more strict and being a people of a publique spirit they preferred the good of their Countrey above all accounting treachery against it or neglect thereof in time of danger to be a crime of the greatest concernment Treason and to be punished in the highest degree Tacitus Proditores transfugas arboribus suspendunt Other Treason then this no not against Kings did they then acknowledge any and therefore the form of the Indictment for contriving the death of their King concluded only Felonice Miror cap. 2. Sec. 11. as may appeare in that form of an indictment for an offence of that nature intended and plotted against Edmond the Saxon King when as for the plotting against aliance though of common and inferiour nature the Indictment concluded felonice proditorie Miror cap. 2. Sec. 13. And whereas the penalty in case of treachery against the Country was death and forfeiture of the whole estate Ll. Edw. cap. 38 both reall and personall in treachery against the King it was onely losse of life and of the personall estate Concil Aenham 26. And therefore it may seem that Majesty had not yet arrived at its full growth or else that the greatest measure thereof rested in the body still If in any thing the Saxons were indulgent The sixth Commandement it was in matters of blood for they were a warlike people and looked upon it as under the regiment of valour and therefore it was punished onely with fine according to the old rule Manslaughter Tacitus Luitur homicidium certo armentorum pecorum numero So as even in Germany they had learned the trick to set a price upon that crime and this they afterward called Manbotta wera wirgida wita and lashlight and which was worse they countenanced that which in after ages was called deadly feude and so under colour of punishing murder with revenge Sax. Lamb. fo 17 18. they added blood to blood But as times grew more tame and inclining to civility or Religion the cry of blood was more hideous and this urged on the Law of appeales and so private revenge became under the power of the Law which punished death with death Miror cap. 5. Sec. 1. Ll. Alured Sax. praeface Lamb. savouring of such a King as Alfred was who first taught the Scriptures to speake in the dialect of our own Laws like the Rubrick amongst the Canons bringing therewith both strength and beauty yet they had degrees of bloodshed and made a difference in the punishment for some sprung from sudden passion but other was forethought and purposed which last they called Abere murther Glossar p. 4. Ll. Canut cap. 93. or murther by foreplot or treachery and this was made nullo precio emendabile and yet towards the times of the Danes devotion grew of so high a dye that a Sanctuary could represent any bloodshed more allowable if not acceptable under the golden colour of recompence made to the King the Lord of the party slain and the parties friends for the losse of a subject a tenant and a friend according to that of their
the right genius of this law will also more evidently appeare by the practice of those times which even when justice it selfe did most importune so tenderly regarded the liberty of mens estates that no distresse could issue without publique warrant obtained Ll. Gulielm cap. 42. 45. and upon three complaints first made and right not done and when rape and plunder was in the heat and men might seem to have no more right then they had power to maintaine yet even then this Law was refuge sufficient for such as were oppressed Gloss 227. Camb. Brit. Norff. and was pleaded in barre against all usurpations and intrusions under pretext of the Conquerours right whatsoever as by the case of Edwine of Sharneburne may appeare Secondly that the free men of England had vote in the making of Laws by which meum and tuum was bounded and maintained as may appeare by what hath been already said nor shall I endeavour further therein Thirdly they had an influence upon the judicatory power for first the matter in fact was determined by the votes of the free men as the Lawes of the Conquerour and of Henry the first doe sufficiently manifest Secondly they had an influence in the making of the Sheriffe who as well as the Bishop was by election of the people Ll. Gulielm cap. 15. Thirdly they had an influence upon all Judges by setting a penall Law upon them in case of corruption which if not so penall as to take away life was neverthelesse penall enough to make an unjust Judge to be a living pattern and example of misery to teach others to beware Two things more must be added though somewhat collaterall to this purpose Concerning the right of the free men in the common Mint and in their villains Concerning the Mint Ll. Aethelst c. 6 Ll Aetheldr c. 22. that the Saxons having made it as parcell of the demesnes of the kingdome and leaving to the King onely an overseership reserved the controll and chiefe survey thereof to the grand Councell of the kingdome who had stated the same in the Confessors time But after him the Normans changed the current according to their own liking till by Henry the first it was reduced into the ancient course Ll. Hen. 1. allowing no money but such as was currant in the daies of the Confessor whose laws also with some alterations by the Conquerour with common advice he also established Concerning the Lords right to their villains it is observable first Ll. Gulielm cap. 65 66. that liberty of infranchisement was allowed which could never have been had not the liberty of the subject been saved Secondly that Infranchisement properly is the worke of the people or the body and the Lord was to deliver his villaine by his right hand unto the Sheriffe in full County court and pronounce him free from his service and shall make roome for him by free passage and open doores and deliver him free armes viz. a Lance and a Sword and then he is made a free man as I conceive to all intents and purposes Ll. Gulielm c. 66. Otherwaies there might be manumission as if the villaine remained in a City Burrough walled Town or Castle by a space of a yeere and a day and no claime made to his service by his Lord he shall be thenceforth free from the service of his Lord for ever and yet this manumission could not conclude any but the Lord and his heires or assignes nor could it inforce the body to allow that for a member which was none before Thirdly that notwithstanding they allowed the Lords liberty of infranchisement Ll. Gulielm 65. yet would they not allow them free liberty of disposing them as other chattels nor by the law of the Conquerour might they sell their villains out of the Countrey or beyond Sea for the King had right to the mediate service of every villaine though the Lord had the immediate and therefore that Law might hold in force neverthelesse the Ordinance that Anselme made that no Lord should sell his villaine they would never allow for a Law nor did it hold in force CHAP. L. A recollection of certaine Norman Lawes concerning the Crown in relation to those of the Saxons formerly mentioned I Call them Norman Lawes because they were allowed by them or continued in force although many of them had their originall from the Saxons First and second Commandements One God must be worshipped and one faith of Christ maintained thoroughout the whole Kingdome This is found amongst the Laws of King William published by Mr Selden Ll. Gulielm c. 51. and was for substance in the Saxons time saving that we finde it not annexed to the Crown summarily untill now so as by this law Heresie and Idolatry became Crown pleas and the like may be collected concerning blasphemy concerning which it s said as of the servants killing his Lord that its impardonable Ll. Hen. 1. c. 75 nor could any man offend herein but it endangered his whole estate The triall of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and as possibly in the County court of the Torne where the Bishop was present Jura Divina edocere Peterpence Ciricksceate and Tithes must be duly payd These are all Saxon laws united to the cognisance of the Crown as formerly hath been shewed Onely the first William especially provided that in case any man worth thirty pence in chattels did pay foure pence for his part Ll. Gul. c. 18. c. 20. Ll. Hen. 1 c. 10. it should be sufficient both for himselfe and his retinue whether servants or retainers and defaults in payment of these duties were finable to the King Invasion upon the right of Sanctuary fined This I note not so much in relation to any such law amongst the Saxons Ll. Gulielm cap. 1. as to the future custome which now began to alter according to the increase or wane of the Moone I doe not finde this misdemeanour to be formerly so much taken to heart by the Crown nor possibly would it have been at this time but that the King must protect the Church if he meane to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their owne right by themselves Amongst all the rest of Church rights this one especially is confirmed viz. That any delinquent shall have liberty of Sanctuary to enjoy both life and member notwithstanding any law to the contrary This priviledge was claimed by the Canons but it must be granted by the Temporall power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such priviledges in particular yet could not such grants create such immunities contrary unto or notwithstanding any publique law of the kingdome and therefore the Monasteries had their foundations confirmed by
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
ground of the heire who was a woman disadvantaged by a whispering of wilfulnesse and customary government like an Empresse which was too high a saile for an English bottome wherein so precious a treasure as the subjects liberties was to be shipped Thus provided Steven stepped up to the English Throne and with protestations of good government entered and made up the match both for Crown and Scepter the people waving the title both of Empresse and heire the pretensions of the E. of Bloys elder brother to Steven gave way to the common law and liberties of the subject to fasten root and gather recompence after the violence of the Norman blasts was out of breath thus making way over hedge and ditch of all Oathes till the King was quietly setled in the Throne Quietly said I that I must retract for he never had quiet during his life though generally was victorious and did as much as a King could doe that had the passions of a man and Souldier to give the subjects content The true cause whereof was an errour in the tying of the knot wherein he neither became theirs nor they his For the fealty that was sworn to him was but conditionall and eousque and yet the Kings promises were absolute and better observed then the peoples were possibly because his engagements were more For besides his protestations the King pledged his brother the Legate to the people and morgaged himselfe to his brother and to boot gave both to the Clergy and Barons liberty to build and hold Castles for their private security the issue whereof may mind that too much countersecurity from the King to the people is like so many Covenants in marriage that make room for jealousie and are but seeds of an unquiet life and thus it befell this Kings reigne His first troubles are brought in by Historians as if they dropped from Heaven yet probably came immediately from without viz. from beyond Sea where the Empresse was for as the Kings engagements were in their first heate on the one side so was also the Empresses choler on the other side and therefore might make the first assault and the Kings first successe therein falling out prosperously for him conceited him that he was strong enough to encounter his own Covenant although in truth he invaded but the skirts thereof I meane that collaterall security of Castles for by experience he now feeles that they are blocks in his way he must therefore have them into his own power But the Clergy are loth to forgoe their pawn till they had their full bargaine for now they were working hard for investures of the Mitred Clergy under the patronage of a Legate that had the King in bonds acted their parts so well as they ingaged the Nobility for their liberty of Castles in which atchivement the King was taken prisoner The Empresse betakes her selfe to the Clergy and by the Legates meanes procures a kind of election to be Queen but she sicke of the womans humour and thinking too much of the Empresse and too little of the Queen and forgetting that the English Crown would not fit an Empresse unlesse she could fit her head first to it choked her owne title by prerogative and so let the Crown slip through her hands which fell upon the head of Steven againe who maintained it by his Sword after by composition and then died a King and thus like a vapour mounted up by the Clergy tossed by tempests for a time and at length falling gave way to the Crown to have its free course to the Empresses son by Geoffery Plantagenet This was Henry the second Henry 2d. the most accomplished for wisdome courage and power of all his predecessors and one that wanted nothing but purpose to have undone what the foregoing Princes had done in the setling of the liberties of the people for the subjects were tired with the unquiet former times and the Clergy in distraction through the Schisme in the Popedome between Victor the fourth and Alexander the third and very unfitting all were to dispute the point of prerogative with so mighty a Prince And it was the wisdome of God to order his affaires so as that he was not very fit to dispute with the people in that case for his title to the Crown was not very excellent being neither heire to the last King that reigned nor to the last of that title I mean to Henry the first but sonne onely to the Empresse who was now alive and by descent was to be preferred before all other His title therefore is clearly by compact and agreement made between the Lords King Steven and himselfe all being then ready to try the right by the Sword to that to which none of them had any right at all at that time but by the favour of the people Nor did the King ever after dispute the strength of this title although before he died his mothers death conveyed over to him what right of descent soever was consistent with the Law of the Crown nor did occasion favour him thereto for as its never seen that any man is honoured by God with many advantages without proportionable imployment for the same so it befell with this King His great Territories in France brought jealousie in the reare and it strife and contention with France enough to turn his thoughts from waxing wanton against his own people and therefore his wisdome taught him to preferre peace at home to the chiefe of his prerogative to become somewhat popular and yet to loose nothing of a King thereby his way was to keepe the Church men down that had during his predecessors time grown whether more obstinate against the King or insolent over the people is hard to judge and in this he had the people to friend and might have prevailed much more then he did but that the people feared the threats of Rome more then he and himselfe if not guilty of Beckets death more the conceit of fame then there was cause these concurring with unnaturall troubles from most unthankfull sonnes made that spirit of his to faile that formerly knew no peere as it s often seen that the most generous spirits are sooner quelled with shame and griefe then with feare of any danger whatsoever Towards his Lay-subjects he was more regardant for the setling of Laws and executing of justice so as some have thought him the first wombe of our English laws others more truly the first Mecoenas since the conquest that brought on the spring time of a setled Common-weale and thereof left this faire testimony by his putting forth that Primrose of English laws under the name of Glanvill letting all men know that thenceforth England would no more vale it selfe in an unknown law but explaine it selfe unto the World to be a regular government such was the Kings Idea yet was he touched with so much of the common infirmity of Kings as shewed him to be a man especially in his old
voting without impeachment CHAP. LIX Of the state of the Clergy and their power in this Kingdome from the Normans time IF the prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much lesse in these times succeeding wherein the Clergy tooke up the Bucklers and beate both King and Commons to a retreat themselves in the interim remaining sole triumphers in the field In their first adventure they paced the stage no man appearing to oppose Steven then was King by their leave and their Bondservant and they might have any thing sobeit they would suffer him to enjoy his Crown His brother the Bishop was the Popes servant the Churchmens patron and the Kings surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better title then election conscience in those times was well enough satisfied in the breach of covenant on their part where on the Kings part it was first broken All this the King saw full well and therefore what can he deny to such benefactors Vacances of Churches he readily parts with and his right of investure of the Mitred Clergy he dispensed so as he opened the way to his successors of an utter dereliction of that priviledge He sees his brother the Legate deflower the Crown of England by maintaining appeales from the Courts in England unto the Court of Rome and he says nothing he is contented with the stumpe of the Crown and with Saul if he be but honoured above or before all others of the people it s his enough But the Clergy like the barren wombe hath not yet enough The King hath allowed them Castles and too late he sees that instead of being defencas against the Imperiall power of the Empresse they are now made bulwarkes against the lawfull power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himselfe is now summoned to answer this before a Legatine councell wherein his brother is President that was a bold adventure in them but it was extreame rashnesse in him to appeare and plead the cause of the Crown of England before a Conventicle of his own subjects And thus to secure Rome of supremacy in appeales he suffers a recovery thereof against his own person in a court of Record and so loses himselfe to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner the Empresse perceiving the power of the Clergy betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospell were now under their decree publish that the election of the King belongeth unto them and by them the Empresse is elected Queen in open Synod Stevens brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange president in the English government for posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the kings return unto his Throne again wherein he continued a friend to the Clergy during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in title and power and one that came to the Crown without preingagement by promise or Covenant saving that which was proper for a King A man he was that knew full well the interests in the government the growing power of the Clergy and the advantages lost from the Crown by his predecessor and to regaine these he smoothes his way towards these braving men speaks faire proffers faire M. Paris An. 1155. he would act to increase the bounds of the Church he would have the Popes leave to doe him a kindnesse and sobeit he might gaine an interest in Ireland he would take it from the Pope who pretended as heire of Jesus Christ to have the Islands and utmost parts of the earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Popes kindnes for the confirmation of the liberties and customs of his Crown and kingdom and no sooner desired then obtained This was the 2d example of a King of England but the first of an English king that sought to Rome for right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple crown Nor was Henry the second lesse benigne to the Church-men till he found by his deere bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himselfe as in that shamefull successe of the death of Becket may appeare wherein he yeelded the day up to the Clergy who formerly scorned to stoop to the greatest Potentate on Earth The state of Kings is to be pitied who must maintaine a politique affection above and sometimes against nature it selfe Constit at Clarindon if they will escape the note of tyranny in their undertakings and of a feeble spirit in their sufferings For the King having made Becket Chancellor of England then Archbishop of Canterbury he became so great that his fethers brushed against the Kings Crown who begins to rouse up himselfe to maintaine his honour and prerogative Royall The Bishops side with Becket the King intending the person and not the Calling singles out the Archbishop and hunts him to soile at Rome yet before he went the King puts the points of his quarrell in writing and made both Archbishop and Bishops signe them as the rights of his Crown and as the Consuetudines Avitae but Becket repenting went to Rome and obtained the Popes pardon and blessing the rest of the Bishops yeelding the cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then overspread the body of the Clergy in those daies and therefore I shall summe them up as follows cap. 1. Rights of Advousons shall be determined in the Kings Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergy Before the Normans time the County courts had them and there they were determined before the Bishop and Sheriffe but the Ecclesiasticall causes being reduced to Ecclesiasticall Courts and the Sheriffe the Laity sequestred from intermedling the Normans according to the custome in their own Country reduced also the triall of rights of Advousons unto the Supreame courts partly because the Kings title was much concerned therein and the Norman Lords no lesse but principally in regard that Rights require the consideration of such as are the most learned
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
them irrecoverably Thus favourites instead of Cement between Prince and people becomming rocks of offence bring ruine sometimes to all but alwaies to themselves The King foresaw the storme and thought it safest first to cry truce with the people and come to agreement with them by common consent Prerog Reg. 17 Edw. 2. for the extent of his prerogative in certaine particular cases questionable and this summed up become a Statute for future times to be a ne plus ultra between the King and people Stat. de Homag The like agreement likewise was concerning services of tenants to their Lords and an oath framed to vindicate them from all incroachments Stat. Templar And something was done to calme the Clergy for the demolishing of the Templer Knights but the wound was incurable words are not believed if actions doe not succeed nor will oaths now made to bind Kings Bishops Councellors of State Sheriffs Majors Bailiffs or Judges to justice nor directions for regulating of Courts nor Ordinances against false moneys and weights nor all of them settle the people but they adhere to the Queen burning with jealousie against the King and both her selfe and the Lords with rage against the Spencers The King flies and being forsaken of the people the Lords the Clergy his own sonne and the wife of his own bosome and of God himselfe as the most absolute abject that ever swayed Scepter lost the same and being made a monument of Gods revenge upon inordinate desires in a King and of the English people being enraged not long surviving his demise he died a death meet to be forever blotted out of the thoughts of all subjects but to be had in everlasting remembrance of all Kings For if a Kingdome or Parliament misleads the King at the worst he is but misled by his Councell but if he be drawn aside by favourites he must thanke his own lust in the one he hath but the least share in the burthen in the other he must beare the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the third NOw was prerogative mounted up to the highest pitch or endeavoured so to be either through the weaknesse or power of these Kings of whom the first and last had little to ground upon but their own will and the other I meane Edward the first had more wisdome and power but was otherwaies distracted by forraine and more urgent imployments so as the worke fainted before it came to its full period The contest was between the King and Barons who till those daies were rather the great and richer sort of men then Peeres although they also were of the number I am not so sharpe sighted as to reach the utmost intentions of the Lords but their pretences are of such publique nature as its plaine that if their private interest was wrapped up therein they were inseparable and I shall never quarrell the Lords aime at private respects whenas its plaine the publique was so importantly concerned and yet I will not justifie all that I finde written concerning their words and Actions M Paris An. 1217. The speech of the E. of Cornwall to his elder brother and King Henry the third I will neither render up my Castle nor depart the Kingdome but by the judgement of the Peeres and of Simon the E. of Leicester to the same King That he lied and were he not a King the Earle would make him repent his word and of the Lords that they would drive the King out of his Kingdome and elect another and of the E. Marshall to Edward the first that he would neither goe into Gascoine nor hang such other doe savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some alay if the generall rudenesse of the time the Kings injurious provocations and the passions of colerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the kingdome of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above law the Lords exceeded not their places in pressing him with their councels to conforme to the laws and in maintaining that trust that was reposed in them in keeping off such sinister councels and invasions as might violate the laws and liberties or hinder the currant of justice concerning which I shall shortly state the case and leave it to the censure of others The government of the people of this Nation in their originall was Democraticall mixt with an Aristocracy if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in forraine parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the warre yet in time of peace was not of that heigth as to rule alone I meane that whereas the Lords formerly had the principall executory power of lawes setled in them they never were absolutely devested of that power by the accesse of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concurre the people generally sided with the Lords and so in conclusion the King suffered in the quarrell From this ground did arise from time to time the wanderings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this copartnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherwaies be supposed where Councels are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appeare against these Kings whereof we treat in cases where they appeared against the laws and liberties of the people it was neither new nor so heinous as it s noised for them who are equally if not more intrusted with the Common-wealth then the King by how much the Councellors are trusted more then the councelled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by threats and warre It s as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall adde to what hath been already said first that Knight service was for the defence of the kingdome principally Secondly that the greatest power of Knight service rested with the Lords not onely in
propriety and ownership but in point of direction for the benefit of the Common-wealth and lastly that the state of the times now was such as the kingdome was oppressed by strangers counsels and the Councels of the kingdome rejected that instead of law garisons of strangers ruled that no man could own his own that the subjects were looked upon as enemies and of all this the King made the principall instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgment of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to kingly dignity then was in those times practised And yet there was a difference also in the occasions of warre for certainly that last warre with Edward the second was more fatall and yet lesse warrantable and in the issue declared that there was more of the Queene therein then of the Lords who knew a way of removing favourites from the King without removing the King from the kingdome or driving him out of the world In all which neverthelesse it cannot be concluded that the Lords party was increased more then in the former Kings times for the losse of the field in Henry the thirds time against the Prince kept them in awe all the succeeding reigne although they were not then tongue tied and their second losse against Edward the second which was yet more sharpe questionlesse quelled their spirits although they lost no right thereby and increased the Kings party much by the accesse to the Crowne of the services of such as held of those Lords that were attainted or disinherited And yet by a hidden providence the King was little the better when it came to the pinch for when Edward the seconds Queen came from beyond the Seas though with but a small force all forsake the King neither regarding the former terrour of the Army of a King nor the right of service nor oath of fealty nor promises nor lawes nor other ingagements and so the King becomes a prey to an enraged woman or which is worse to a jealous wife so little can the name of a King doe when his person is despised and so vaine for him to trust in his Militia that hath already disarmed himselfe of the hearts of his Subjects The summe then of all the labours of the Nobles during these times will rest in this that they won the day and yet lost the field although they lost their own bloods and estates yet they saved all to the people and left laws in force able to debate with prerogative in the hand of any King that should succeed Thus stood the matter in fact upon such grounds as it had the validity whereof it s not my worke to censure neither by the ballance of Law or Gospell but leave it as a sore time that scarce will indure touch nor beare a King further then he was good or brave CHAP. LXVI Of the state of the English Clergy untill the time of Edward the third and herein concerning the Statute of Circumspecte agatis Articuli Cleri and of generall Councels and nationall Synods IT was a time of much action throughout the whole Christian State and Rome now having attained to its full glory began to be eyed on all parts as an irregular motion crossing all affaires that it may like the sole Empresse command all and be controlled by none and this wrought some stirrings in France complainings in England M. Paris 720. and facing between the Emperour and the Pope How chargable this was to the Popes treasury it s not materiall but it occasioned or was pretended to be the occasion of all the intolerable exactions ensuing there being scarce one yeere passed over without some extraordinary exaction leavied upon the Churchmen either by provisors tenths procurations levies for the Holy warre Quindizmes benevolences or other such like and where money was not to be had by levies of Ornaments or of rich apparell by intimation begging perswading commanding threatning and in this course continuing till they had outfaced shame it selfe and that the whole law of Rome became comprehended in this one Quicquid libet licet In generall therefore the Church of Rome cannot be said to thrive during these extorting times although Rome did for if the Laity were pillaged by the King the Clergy much more both by Pope and King if the one complained the other cried the one sometimes found reliefe from the King but the other was helplesse for the Pope had no eares to heare M. Paris not the King hands to helpe he neither durst nor would crosse the Pope although the Clergy told him that by these exactions they were impoverished in such manner as they were disabled to doe him service for their lay Fees Thus Rome becomes a burden to Rome and the members weary of bearing their head Hereafter must the Pope beware of falling out with Kings for the English Clergy now though late see that all is not Gold that glisters nor is it any great priviledge to be the Popes men further then the Pope will be a good master but this was not to be expected Popes were grown so excellent as they could not amend and England so enamoured of them as it s become their vere bortus deliciarum M. Paris as the Pope called it when he saw the rich vestments of the English Church men And therefore they must now be contented to be the Popes viands as often as his hungry maw doth call or otherwise they must fall out An excellent posture of affaires and brave preparative to dispose the hearts of all sorts for intertainment of the easie yoke of Christs government which was now at the doore and ready to be revealed Neverthelesse poore and mean as the Clergy was they had courage enough not onely to stickle both with King and people for their own liberties but also to invade the liberties both of the Crown and Commons having this advantage that they had to doe with a King and people that were two and themselves well seconded by the Pope that had no lesse power in those times of publique distraction and was bound to serve the cattell well that yeelded him so much milke M. Paris An. 1257. Vid. Addit Baronius Anal. 1306. The particular matters of debate may appeare in their paper of grievances composed in Henry the thirds time and their resolutions thereupon their complaints were renewed againe in the time of Edward the first if we may give credit to Baronius after the Statute of circumspecte agatis To the end therefore that the whole may lie before us I shall set down the matter or substance of both these papers severally in regard they sound much alike and note the difference all which I shall doe to the end that it may more plainly appeare what the Churchmens Idea was and how farre the
Circumspect agatis for in such cases the Ecclesiasticall Judge hath cognisance notwithstanding the Kings prohibition It s therefore neither grant nor release but as it were a covenant that the Clergy shall hold peaceable possession of what 〈◊〉 had upon this ground that the Kings prohibition hath no place in such things as are meerly spirituall So as hereby the Clergy got a judgement against the Crown by confession and an estopell upon this maxime that spirituall things belong to spirituall men into which ranke the Kings person cannot come thus thought they but what are spirituall causes and why so called are they such as concerne spirituall persons and things this was the old way marke but if we bring into this Category Adultery Fornication Incest c. we shall marre all Linwood tels us that mere spiritualia are such as are sine mixtura temporalium there may be somewhat in this though I cannot finde it nor can I make out the sence of the terme any other way but to limit it to such things which by common custome the Ecclesiasticall Judge had cognisance of for otherwise neither King nor law ever intended it to be expounded by the Canon nor was it the intent of this Writ Law or Licence call it what you will thus to conclude as the particulars following will manifest Fornication Adultery and such like punished sometimes upon the body and sometimes upon the purse These crimes the Saxons punished by the temporall power as I have already shewed The Normans continued this course if we may believe the Conquerours lawes which gave the fine in such cases to the Lord of the delinquent Ll. Gulielm cap. 14 19 371. And it is confessed that Henry the first and the second continued it as the Clergies own complaint just or unjust doth witnesse And what course was holden in the times of King Steven and John is to me unknown M. Paris addit fo 201. art 28. nor is it much to be regarded seeing the latter did he cared not what and the former to gaine the good will of the Clergy regarded not what he did The custome therefore cannot be made good for the Clergy much lesse to punish the bodies of freemen in such cases it being contrary to the grand Charter never asked by the Clergy formerly nor no complaint before now for deniall for my part therefore I shall not apprehend it of a higher nature then the Kings Writ which in those daies went forth at randome if the 44th Article of the Clergies complaints foregoing be true It be 〈◊〉 so contrary to the common sence of Parliament to give the bodies of the free men to the will of the Clergy to whom they would not submit their free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerke Defamation to reforme not to give dammage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the valew Mortuaries due by custome A pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the third who was King but yesterday as the Articles of complaint formerly set down doe manifest Nor had the Clergy ever better title then connivance of some such favourites as King Steven whose acts may peradventure be urged against Kings but not against the people unlesse their owne act can be produced to warrant it The learning in the Princes case wil I suppose admit of a difference Coke lib. 8. for it can never be made out that the Kings Councell in Parliament was the Magnum concilium Regni but onely the house of Lords and therefore whatever passed in Parliament by their onely advice might binde the King but could never reach the Commons nor their liberties And thus the grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it selfe of that which was originaly custome And therefore this law however countenanced can never be concluded to be other then a permission not onely because it was never the act of the Commons of England but because its contrary to the liberty of the free men and it s beyond all imagination that the Commons should out themselves from the protection of the Common law and yoke themselves their free holds and estates under the bondage of the Canons nor ought such a construction to be admitted without expresse words to warrant it As for the conclusion it is much worfe and not onely dishonourable to the King in binding his armes from protecting his Subjects by the Common lawes and so in some respects making them outlawes but dishonourable to it selfe whiles it makes prohibitions grounded upon Laws to be nullities by a late tricke of non-obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergy and thus are all set at liberty from any rule but that of licenciousnesse Neverthelesse this Law did thrive accordingly for we finde scarce any footsteps in Story of any regard had thereof till it became gray headed For it was not long ere the King stood in need of money and was necessitated to try the good wils of the Clergy more then once this occasioned them to be slow in answer and in conclusion to deny that they should ayd the King with any more money Antiq. Brit. vit Winchelsy Papa inconsulto The King hereupon disavowes the Clergy and leaves them to the Romish oppressions which were many and then the Clergy rub up all old sores and exhibite their complaints to their holy Father Baronus Annal An. 1306. to this effect 1. That the Kings Justices intermeddle in testamentary causes accounts of Executors and cognisance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the Kings carriages That the Kings Mils were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their goods were seised till their accounts were made That Ecclesiasticall possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the Kings Justices tooke cognisance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Churchyards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the Kings court for crimes and being acquitted the informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the Kings court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are inlarged in
passe before the party was indicted Stat. de asport relig 35 E. 1. No religious House shall be charged with taxe to any superiour without the Realm of England nor shall send to any visitation out of England This was neither at the request of the Clergy nor act of kindnesse intended unto them but for the good of the Kingdome to prevent the bleeding of the treasure of the Kingdome into forraine parts Mag. carta cap. 35. Patrons of Abbies shall have their custody during their vacancies This was the ancient Law now revived by the Clergies consent and intended for the safegard of the Revenues of the Houses and their maintenance and therefore it s with a sicut superius dictum est cap. 5. Stat. de prisis Edw. 2. The goods of the Clergy freed from purveyance unlesse they will It was a favour given by Edw. 2. to the Clergy to gaine their good will after the death of Gaveston the shamefull defeat received in Scotland and some particular testimonies of Gods displeasure whereof he began to be somewhat sensible Stat. de quo Warranto 18 Edw. 1. Franchises holden by prescription or charter confirmed and trials by Quo warranto allowed to be in eyer It was the common share of the great men but especially of the Clergy to have their franchises exposed to the prey of the Eagles or to such as hauked for them and its likely the King had not so easily forgone his prise if all the fat had faln to his own share but perceiving that more benefit came to his instruments then was meet and himselfe little the better thereby he sacrificed his Judges to the people but it was to his own behoofe and so gained both credit and favour from the people and profit to himselfe and in some measure satisfied the 48 49 50. Articles of the Clergies complaint in the time of Henry the third and the 15th Article of their last complaint Lands or Tenements aliened to a Religious house shall escheate to the Lord Mag. carta cap. 37. if the alienor take the same backe to hold of that house The ground hereof principally was the prejudice done to the Lord by destruction of the tenure albeit that it had been an ancient grievance complained of in the Saxon times that the Clergy were covetous and swallowed down estates and thereby weakned the Kingdome But now they are become even cheaters serving the turnes of treacherous tenants that would give their Lands by compact with the Church men to receive them againe from them to hold of the Church which was a liberty that men thirsted after in those times wherein the Church men were more adored then their Images Bracton lib. 1. fo 13. Coke 2. instit super Magna carta cap. 36. p. 74 75. Bracton lib. 2. cap. 10. fo 27. It seems this Law was made after Bractons time if that be true in the second institutes for he saith that a man may give his lands to any one whether Christian or Jew or religious person and nothing shall hinder it but the speciall reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his tenure albeit the gift be in free almes Neverthelesse it seemeth to be such restraint as the Templers and Hospitallers were faine to find out a new way which was to protect mens tenements from execution of law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. Stat. West 2. cap. 33. provided a law to make this also in nature of a Mortmaine within the Statute made in the seventh yeere of his reigne called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmaine the Lord should have liberty to enter if he failed then the Lord paramont Stat. de Religiosis 7 E. 1. or if he failed the King should enter and dispose of the same and that no licence of Mortmaine should be sued out but by the mean Lords assent and where part of the premises remaine still in the Donor and the originall Writ mentioneth all the particulars And thus at length was this issue for the present staied which hitherto wasted the strength of the Kingdom Stat. de Amortizandis terris M. West An. 1280. Mag. carta cap. 39. and by continuall current emptying it into the mare mortuum of the Clergy consumed the maintenance of Knight service by converting the same to Clerk-service No Iudge shall compell a free man to make othe without the Kings command Miror Just cap. 5. sec 3. So is the sence of the law rendred by an ancient authour and I hope I shall not wrong the Text if I affirme that the Ecclesiasticall Judge was included within the equity though properly he be not Balivus for the Law intends to shew that its a liberty that the subject hath not to be compelled to take oath without the Kings especiall command and by consequence it sheweth also that the King at that time and untill then had the directory of oathes for it was an ancient liberty given in the Kings charters unto such as they pleased viz. to impose oathes Malimsb de gest Reg. lib. 2. and to punish for breach of oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abby of Glastenbury amongst other Athas Ordulas and the Churchmen that first procured vacations from suits of law during holy times procured a law also to be setled by Edward the Saxon King and Gunthurne the Dane Ll. Edw. cap. 9. that Ordeale and oathes should be forbidden upon the holy Feasts and lawfull fasts And a wonder it is how it escaped the gripe of the Clergy so long who catched at any thing that had but a glance of Gods worship in it And if this were the subjects liberty not to be compelled to sweare surely much more not to be compelled to accuse himselfe unlesse by the law he be especially bound Bracton lib. 3. cap. 7 fo 106. for it is Glanviles rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curiae But the power of the Clergy now was grown strong and they begin to remember themselves and that oathes are of a holy regard and they men for holinesse best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claime and to make a sure title they get a grant from Pope Innocent to Steven Langton Archbishop of Canterbury of a faculty of licencing administration of oathes during the time of Lent and he accordingly enjoyed it during the mad time of Henry the third But Edward the first quarrelled it and left it questionable to Edward the second who being in his condition as a
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
about these times and therewith ended both the worke and common use of the ancient iters and yet all these later courts joyntly considered have not the like comprehensive power that the iters had for they had the power of hearing and determining all causes both of the Crown and Common-pleas albeit in a different manner that is to say in the first times promiscuously united into one and the same person but soon after the Norman times and more clearly in the time of Henry the second that power was divided into severall persons some sitting upon the Common pleas others upon the Crown pleas The Judges of these journying courts were specially assigned by the King as in the case of the Gaole-delivery or setled by the Law upon the Judges of both benches at Westminster as in case of oyer and terminer Westm 2. ca. 29 and of the Assizes or Nisi prius saving that in the last case they were associated with Knights in the Counties for the taking of Assizes Ibid. c. 30. Now concerning the Courts that were setled some were setled or annexed to the Kings personall residence as the Chancellours Court for in these times it began to have a judiciary power of eminent stature and growing out of the decayes of the great chiefe Justice of England Then also the Kings bench was annexed by the same Law unto the Kings Court or personall residence Fleta Artic. sup cart cap. 15. as it anciently ever had that honour although it seems the endeavours were to make it like the Common pleas in that particular Another and last court that was setled in this manner was the Marshals court which in the originall onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places 5 E. 4 fo 129. because the Kings attendants were many in those times when as the Courts of justice continually attended on his person and this precinct was called the Vierge and all cases of debt and covenant where both parties were of the Houshold Artic. sup cart cap. 3. and of trespasses vi armis where one of them was of the houshold were handled in the court of the Verge or the Marshals court And inquests of death within the same shall be taken by the Coroner of the County with the Coroner of the houshold Other Courts were rurall and affixed also to some certaine place either of the County or Town or other particular place That of the County suffered in these times great diminution even almost to destruction by a Law restraining the power thereof onely to trespasses of 40 s. value or under Stat. Gouc cap. 8. for though formerly the Kings justices incroached upon the County courts and contracted suits before themselves which by the ancient law they ought not yet it was ever illegall and the County courts held their right till this law was made which kept under those inferiour Courts and made them of lesse account then formerly Neverthelesse the Kings Justicies or Writ to the Sheriffs oftentimes inableth the inferiour Court to have cognisance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations West 1. cap. 23. Faires and Markets viz. that no person should be sued in any of them which was not a debter or pledge there CHAP. LXIX Of Coroners Sheriffs and Crown pleas Coroners Westm 1. ca. 10 COreners shall be chosen in the county from the wisest greatest and chiefe men of the country Of these Officers formerly hath been spoken as touching their election qualification and worke this Law brought in no change of any former Law but onely of a former custome gained by these degenerating times which brought men into place that were farre unfit who otherwise of poore and mean condition maintained themselves by bribery and extortion and being found guilty had not sufficient to give recompence This law therefore revives the first law and hold these men to their worke of taking inquests and appeales by indenture between themselves and the Sheriff and these were to be certified at the next comming of the Justices Sheriffs Artic. sup cart cap. 9. The Free holders in every county if they will shall elect their own Sheriff unlesse the Sheriffwicke be holden in see This was indeed the ancient custome as the Officers of the Kingdome were eligible by the Common-councell of the Kingdome Miror cap. 1. Sec. 3. Stat. de vic 9 E. 2. so were also the Officers of the County chosen by the County But within a few yeeres in the time of Edward the second comes another law that the Sheriffs shall be appointed by the Chancellor Treasurer Barons of the Exchequer and the Justices which Law was made in favour of the people as by the file of that Statute doth more fully appeare for though at the first blush it may seem a priviledge lost by the free men that these great men should have the election of the Sheriff yet it proved a great advantage to the common quiet of the people in those times of parties and was so apprehended Otherwise as the case stood in those daies of Edward the second it was no time for him to gaine upon the peoples liberties Nor had the Statute of Articuli super cartas whereof we now treat been penned with these words if they will and questionlesse in these daies we now live in if the people had but a little taste of this seeming liberty of electing Sheriffs in the County court as formerly it was used it would be soon perceived that the election of these chiefe Officers were better disposed in some other hand if rightly pursued Homicide by mis-fortune shall not be adjudged murther Chancemedly Marlbr cap. 25. That the Saxons made difference between homicide by misfortune and that which was done felleo animo or with a spirit of gall formerly hath been shewed now what it was that altered the case I cannot say unlesse the violence cruelty and oppression of the times formerly all kind of manslaughter was finable I mean in the Norman times and so might more rationally be ranked into one degree but now the punishment began to change from forfeiture of estate and losse of member to death and forfaiture of estate and therefore it was more necessary to make the difference in the penalty seeing in the fine formerly a difference was observed and this difference to assert by a Law that might limit the invenomed spirits of the Judges of those daies Robbery Robbery punished with death This crime hitherto was punished by fine and losse of member at the utmost but is now made capitall punished with death One example whereof and the first that story maketh mention of we finde of an Irish Nobleman in the daies of Henry the third who suffered death for piracy and it was a law that then though rigorous yet seasonably was contrived to retard the beginnings and hasten the conclusion of a civill warre in a
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
Chap. 48. Of the severall subservient jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries p. 131 Chap. 49. Of the immunities of the Saxon free men under the Norman government p. 135 Chap. 50. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned p. 138 Chap. 51. Of the like Lawes that concerne common interest of goods p. 142 Chap. 52. Of Laws that concerne common interest of Lands p. 144 Chap. 53. Of divers Laws made concerning the execution of justice p. 150 Chap. 54. Of the Militia during the Normans time p. 152 Chap. 55. That the entry of the Normans into this government could not be by Conquest p. 155 Chap. 56. A briefe survey of the sence of Writers concerning the point of conquest p. 158 CHap. 57. Of the government during the Reignes of Steven Henry the second Richard the first and John and first of their titles to the Crown and disposition in government p. 165 Chap. 58. Of the state of the Nobility of England from the Conquest and during the Reigne of these severall Kings p. 172 Chap. 59. Of the state of the Clergie and their power in this Kingdome from the Norman time p. 175 Chap. 60. Of the English Communally since the Norman time p. 188 Chap. 61. Of Judicature the Courts and their Iudges p. 189 Chap. 62. Of certaine Laws of judicature in the time of Henry the 2. p. 193 Chap 63. Of the Militia of this Kingdome during the Reigne of these Kings p. 205 CHap. 64. Of the government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government p. 207 Chap. 65. Of the condition of the Nobility of England till the time of Edward the third p. 221 Chap. 66. Of the state of the English Clergie untill the time of Edward the third and herein concerning the Statutes of Circumspecte agatis Articuli cleri and of Generall Councels and Nationall Synods p. 225 Chap. 67. Of the condition of the Free men of England and the grand Charter and severall Statutes concerning the same during the Reigne of these Kings p. 253 Chap. 68. Of Courts and their proceedings p. 284 Chap. 69. Of Coroners Sheriffs and Crowne pleas p. 286 Chap. 70. Of the Militia during these Kings reignes p. 294 Chap. 71. Of the Peace p. 300 PROLOGUE THe policie of English government so farre as is praise-worthy is all one with Divine providence wrapped up in a vaile of Kings and wise men and thus implicitely hath been delivered to the World by Historians who for the most part doe read men and weare their Pens in decyphering their persons and conditions some of whom having met with ingenuous Writers survive themselves possibly more famous after death then before Others after a miserable life wasted are yet more miserable in being little better then tables to set forth the Painters workmanship and to let the World know that their Historians are more witty then themselves of whom they wrote were either wise or good And thus History that should be a witnesse of Truth and time becomes little better then a parable or rather then a nonsence in a faire Character whose best commendation is that it s well written Doubtlesse Histories of persons or lives of men have their excellency in fruit for imitation and continuance of fame as a reward of vertue yet will not the coacervation of these together declare the nature of a Common-weale better then the beauty of a body dismembred is revived by thrusting together the members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queenes of this Realme may justly challenge the honour of passing many excellent Lawes albeit its the proper worke of the representative body to forme them yet to no one nor all of them can we attribute the honour of that wisdome and goodnesse that constituted this blessed frame of government for seldome is it seen that one Prince buildeth upon the foundation of his predecessour or pursueth his ends or aimes because as severall men they have severall judgements and desires and are subject to a Royall kind of selfe-love that inciteth them either to exceed former presidents or at least to differ from them that they may not seem to rule by coppy as insufficient of themselves which is a kind of disparagement to such as are above Adde hereunto that it s not to be conceited that the wisest of our ancestors saw the Idea of this government nor was it any where in president but in him that determined the same from eternity for as no Nation can shew more variety and inconstancy in the government of Princes then this especially for three hundred yeeres next ensuing the Normans so reason cannot move imagination that these wheeles by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aime therefore shall be to lay aside the consideration of man as much as may be and to extract a summary view of the cardinall passes of the government of this Kingdome and to glance at various aspects of the ancient upon the moderne that so these divers Princes and wise councels in their different course may appeare to be no other then the instruments of him that is but one and of one mind whose goings forth have been in a continuall course of Wisdome and goodnesse for our selves in these latter daies and herein I am encouraged because I am not in danger of temptation to flattery or spleene nor pinched with penury of grounds of observation having to doe with a Nation then vvhich a cleerer miror of Gods gracious government is not to be found amongst all the Nations and peoples under Heaven The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and
there as may appeare in the severall relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he maketh much use of and therefore I shall be bold to make the best use of him that I can likewise in Vindicating the truth of the point in hand For whatever this Councill was it s the lesse materiall seeing the same Author recites a president of King Aethelbert within six yeares after Austins entry into this Island which was long before this Councill which bringeth on the Vann of all the rest of the Opponents instances which King called a Councill styled Commune Concilium tam Cleri quam Populi Pag. 126. and in the conclusion of the same a Law is made upon the like occasion Si Rex populum Convocaverit c. in both which its evident that in those times there were Councils holden by the People as well as the Magnates or Optimates His next instance is in the yeare 694. which is of a Councill holden by the Great Men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also minde him that the same Author reciteth a Councill holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and is very probable that all the Wise men of the Kingdome were not concluded within the Lordly dignity The third instance can have no better successe unlesse he will have the Pope to be allowed power to call a Parliament or allow the Arch-Bishop power to doe that service by the Popes command for by that authority this what ever it be was called if we give credit to the relation of Sir Henry Spelman who also reciteth another Councell within three leaves foregoing this Concil Britt Pag. 212. called by Withered at Barkhamstead unto which the Clergy were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Ibid. pa. 194. Souldiers or Knights were in the common Councels as well as other Great Men. In the next place he bringeth in a Councill holden in the yeare 747. Ibid. pa. 242. 245. which if the Arch-Bishop were then therein President as it s sayd in the presence of the King was no Parliament but a Church-mote and all the conclusions in the same doe testifie no lesse they being every one concerning Ecclesiasticall matters Pag. 219. And furthermore before this time the Author out of whom he citeth this Councill mentioneth another Councill holden by Ina the Saxon King in the presence of the Bishops Princes Lords Earles and all the wise old Men and People of the Kingdome all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastry of Glastenbury was made not onely in the presence of the Great Men but Cum praesentia populationis and he saith that Omnes confirmaverunt which I doe not mention as a worke necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty yeares after hee meeteth with another Councill which he supposeth to be a Parliament also but was none unlesse he will allow the Popes Legate power to summon a Parliament It was holden in the yeare 787. and had he duely considered the returne made by the Popes Legate of the Acts of that Councill Pag. 300. which is also published by the same Author hee might have found that the Legate saith that they were propounded in publike Councill before the King Arch-Bishop and all the Bishops and Abbots of the Kingdome Senators Dukes or Captaines and people of the Land and they all consented to keep the same Then he brings in a Councill holden in the year 793. which he would never have set downe in the list of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it s sayd to be holden Anno 974. before nine Kings fifteene Bishops twenty Dukes c. which for ought appeares may comprehend all England and Scotland and is no Parliament of one Nation but a party of many Nations for some great matter no doubt yet nothing in particular mentioned but the solemne laying the foundation of the Monastry of Saint-Albans What manner of Councill the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the yeare 796. That Councill which is next produced was in the yeare 800. and is called in great letters Concilium Provinciale which he cannot Gramatically construe to be a Parliament yet in the Preface it is sayd that there were Viri cujuscunque dignitatis and the King in his Letter to the Pope saith concerning it Pag. 321. Visum est cunctis gentis nostrae sapientibus so as it seemeth by this and other examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Witagen-mote to Judge and conclude them There can be no question but the next three Presidents brought by the Opponent were all of them Church-motes Concil Brit. Pag. 328. For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters Concil Brit. Pag. 334. and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or
Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the sitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercians and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could fit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates verò sua nomina subscripserunt Concil Brit. Pag. 350. And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing Concil Brit. Pag. 480. by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament Concil Britt Pag. 490. according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus Pag. 534. of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo Pag. 621. And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concernning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them also For Kings were mistaken in the Lords who meaned nothing lesse them to serve them with the peoples liberties together with their owne which they saw wrapped up in the grosse Thirdly by this meanes the Councils of the King and Lords grew potent not onely for advise in particular occasions but in matters of judicature and declaring of Law ordering of processe in Courts of Plees which in the first framing were the workes of Wise and Learned men but being once setled become part of the liberties of every Free-man And it is not to be doubted but these Councills of Lords did outreach into things two great for them to mannage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of the legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into severall Categories for the more cleere satisfaction to the Reader with lesse tediousnesse First it cannot be denied but the Councill of Lords gave advise to Kings in cases of particular immergency nor is it incongruous to the course of government even to this day nor meere that the Parliament
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
that worke which outwearied their strength at last and made them forgoe the prey as too heavy for the Eagle to trusse and carry away It oft befals that things of deformed shape are neverthelesse of excellent spirit and serve the turne best of all and it is no lesse remarkable that this tyde of Roman invasion however it represented to the world little other then a tumour of vain-glory in the Romans that must needs be fatall to the Britons liberty and welfare yet by over-ruling providence it conduced so much to the Britons future glory as it must be acknowledged one of the chiefe master-pieces of supernaturall moderatorship that ever this poore Island met with First it taught them to beare the yoke to stoop and become tractable for stubborne spirits must first stoop under power before they will stoop to instruction but this onely in the way for tractablenesse if good ensue not is of it selfe but a disposition for evill Secondly it brought into Britaine the knowledge of Arts and civility and questionlesse it was a wise policy of Agricola to goe that way to worke Tacit. vit Agric. for its an easie and Royall worke to governe wise men but to governe fooles or mad men is a continuall slavery and thus religion already setled in Britaine became honoured with a traine of attendants and handmaids Thirdly they reduced the number of little Lordships nigher to the more honourable estate of Monarchy for the Romans by deere experience finding no stability or assurance in what they had gotten so long as so many petty Kings had the rule they wisely brought the whole into one Province because it is much easier to governe many subordinate each to other then co-ordinate one with another over which they allowed one chiefe to rule the people according to their own Lawes saving their service to the Romans and their Lieutenants untill they were necessitated to yeeld up all to the next occupant This served the British Church with a double interest For first Religion spreads sooner under one uniform government then under variety and under Monarchy rightly ordered rather then any other government whatsoever albeit that other governments may afford it faster footing when it is entred Secondly Rome was a renowned Church throughout the world for gifts and graces and it is obvious to conceive that it was specially purposed by divine providence to make that place a fountaine that from thence the knowledge of Christ might convey it selfe joyntly with the influence of Imperiall power as the spirits with the blood into all Nations of that vast body Above one hundred yeeres were spent in this Provinciall way of government of Britaine under the Roman Lieutenants during all which time Religion spread under ground whiles the Roman power in a continuall war sprang upward Nor is it strange that Religion should thrive in warre the French wars in Edward the thirds time brought much of this happinesse to England from the Waldenses and Germany had no lesse benefit by the wars of Charles the fifth with the Italians French and Turks and thus the Romans levened with the Gospell by exchanging men with Britaine and other mutuall correspondencies insinuated that leven by degrees which in the conclusion prevailed over all For the Roman Lieutenants having gotten sure footing in Britaine steered their course with a different hand generally they were of the Roman stampe seeking to kill Christ in the Cradle and by that meanes Religion met with many bitter storms of bitter persecution and so was compelled to beare a low saile but some being more debonaire and of wiser observation soon found that the way of justice and gentlenesse had more force in Britaine then Armes and so endeavoured to maintaine that by moderation which they had gotten by labour and blood as it is ever seen that where conquest is in the van gentlenesse follows in the reare because no Bow can stand long bent but at length must give in and grow weake And thus by connivance the Britons got a little more scope and Religion more encouragement till it became acquainted with the Roman Deputies began to treat with the Emperours themselves and under the wise government of Aurelius the Emperour mounting into the Brittish throne crowned Lucius first of all Kings with the Royall Title of a Christian He now not so much a vassall as a friend and ally to the Romans and perceiving the Empire to be past noon and their Lieutenants to comply with the Christians began to provide for future generations and according to the two grand defects of Religion and Justice applied himselfe for the establishment of both Religion in Britaine hath hitherto been for the most part maintained by immediate influence from Heaven No Schools no learning either maintained or desired the want whereof together with the persecutions stirred up by the Emperours especially Domitian brought the Church to so low an ebbe that the Sacraments ceased for Histories tell us that Lucius sent to Rome for reliefe and that the Bishop of that place whether Evaristus or Eleutherius sent over learned men to preach and baptize both King and people and in this Rome might probably gaine some honour M. Westm an 181. although possibly the King intended it not or muchlesse to acknowledge any authority or power in that Church over that of Britaine This act of Lucius so advanced him in the opinion of writers that they know not when they have said enough Some will have him to be the instrument of the first entry of Religion into this Isle others that he setled a forme of Church-government under the three Archbishops of London Yorke and Caerlion upon Vske and 28 Bishopricks the first of which is cried down by many demonstrative instances nor can it consist with the second nor that with it or with the truth of other stories For it neither can be made out that Lucius had that large circuit within his Dominion nor that the title of Archbishop was in his daies known and t is very improbable that the British Church was so numerous or that Religion in his time was overspread the whole Island nor is there any mention in any Authour of any Monuments of these Archbishops or Bishops of Britaine for the space of 200 yeeres after this Kings reign and yet no continuall raging persecution that we read of that should enforce them to obscure their profession or hide their heads or if such times had been it would have been expected that Bishops in those daies should be in Britaine as well as in other places most famous for gifts and graces and passe in the forefront of persecution But we finde no such thing no not in the rages of Dioclesian which made the British Church famous for Martyrs Writers speake of Alban Amphibalus Aron Julius and a multitude of Lay-people but do not mention one Bishop nor Presbyter nor other Clergyman M. Westm an 303. but quendam Clericum a man it seems of no
note and of unknown name In charity therefore the English Church in those daies must be of mean repute for outward pompe and not lifted up to that height of Archbishops when as Rome it selfe was content with a Bishop Somewhat more probable it is that is noted by writers concerning Lucius his endeavour to settle the Common-wealth and good Lawes for government and to that end did write a Letter to Eleutherius Bishop of Rome for a modell of the Roman Lawes probably being induced thereunto by the splendor of the state of the Roman Church and Common-weale the onely favourite of fame in those times through the Northern parts of the World Things afar off I confesse are dim and its meet that Antiquaries should have the honour due to great after-sight And therfore I might think as some of them have done that the Epistle of Eleutherius to King Lucius is spurious if I could imagine to what end any man should hazzard his wits upon such a fiction or if the incongruities charged against it were incurable but being allowed to be first written in Latine and then translated into British for the peoples satisfaction and in that Language the originall being lost traduced to posterity and then by some Latine writer in after ages returned into Latine and so derived to these times all which very probably hath been such occasions of exceptions might well arise by mistake of translators and transcribers in ignorant times and the substance neverthelesse remaine entire and true Considering therefore that the matter of that Epistle savoureth of the purer times of the Church and so contrary to the dregs of Romulus Cic. Attic. 2. I meane the policy practice and language of the Roman Clergy in these latter ages wherein this forgery if so it be was made I must allow it to passe for currant for the substance not justifying the syllabicall writing thereof To others it seemeth needlesse and vaine that Lucius should send for a modell to Eleutherius when as the Roman Deputies and Legions at home might have satisfied the Kings desire in that particular or their owne experience might have taught them grounds sufficient after two hundred yeeres converse with the Romans that they should have little needed a model for that which they saw continually before their view or might have understood by inquiry of their own acquaintance But what could be expected of rough souldiers concerning forme of government of a Common-weale or if some exceeded the ordinary straine in policy yet they were too wise to communicate such Pearles to conquered Nations that ought to look no higher then the will of the Conquerour and subsist in no better condition then may be controlled by the Supreame Imperiall Law of the Lord Paramount or if in this they had corresponded to the desires of the Britaines yet being for the most part ignorant of the maine they could never have satisfied the expectations of a Christian King who desires such a Law as may befriend Religion and wherein no man was more like to give direction then Eleutherius who seeing a kind of enmity between the Roman Lawes and Christs Kingdom sends to the King a fair refusall of his request upon this ground that leges Romanas Caesaris semper reprobare possumus he saw that they were not well grounded he therefore refers the King to the sacred Scripture that is truth it selfe Lawes that come nighest to it are most constant and make the government more easie for the Magistrate quiet for the people and delightfull to all because mens minds are setled in expectation of future events in government according to the present rule and changes in course of government are looked at as uncouth motions of the Celestiall bodies portending judgements or dissolution This was the way of humane wisdome but God had an eye on all this beyond all reach of preconceipt of man which was to make England happy in the enjoying of a better Law and government then Rome how glorious soever then it was and to deliver that Island from the common danger of the world for had we once come under the law of the first beast as we were under his power we had been in danger of being borne slaves under the Law of the second beast as other Nations were who cannot shake it off to this day But Lucius lived not to effect this worke it was much delayed by the evill of the times nothing was more changeable then the Empire grew the Emperours many of them so vicious as they were a burden to mankind nor could they endure any Deputy or Lieutenant that were of better fame then themselves had Some of them minded the affaires of the East others of the North none of them were ad omnia And the Lieutenants in Britaine either too good for their Emperour and so were soon removed or too bad for the people of the Land and never suffered to rest free from tumults and insurrections neither Lucius could prevaile nor any of his successors But passing through continuall crosse flouds of persecutions under Maximinus Dioclesian and Maximinianus and many civill broyles till the times of Constantine at length it attained the haven For Constantine having overcome Maxentius and gotten thereby into the highest Orbe of government in the Empire reflected such an amiable aspect upon the Churches especially in Britaine as if he had intended to pay to them all that God had lent him A wise Prince he was questionlesse yet towards the Church shewed more affection endeavouring to reduce the government in every place unto the Roman Prototype and therein added much honour to that See especially to Pope Sylvester whose Scholler he had been This may seem a sufficient inducement to perswade that he was the first patron of English Prelacy seeing we finde it in no approved testimony before that time nor was it long after whenas the presence of the Brittish Bishops are found at the Synod by him called at Arles viz. the Bishops not Archbishops of London and Yorke Concil Brit. 42. and the Bishop of Maldune and those in no great pompe if the relation be true that by reason of their poverty they were not able to undergoe the charge of their journey and attendance so as it seems they had but new set up and had not yet found out the right way of trade that other Bishops had attained And thus God ordered first the setling of a Government of the Church in Britaine and its Liberties before the Secular part enjoyed any therein working with this Nation as with a man making him to be bonus homo before he can be bonus civis The Church of Britaine thus set together is wound up for motion they soon learnd the use of Synods from that Synod at Arles if they had it not before and tooke as much power to themselves in their Synods as in other Countries was used and somewhat more to boot For they had the hap to continue in Britaine in
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
there is a much more difference between an Almes and a Tribute then between the King and the people Now that it was an Almes and not a Tribute may appeare for that the originall was a suddaine pang of zeale Vit. Offae 29. conceived and borne in one breath while the King was at Rome and therefore not imposed as a Tribute Secondly it was ex regali munificentia and therefore free Thirdly it was expressely the gift of the King for the Law of St Edward which provideth for the recovery of the arreares of this money Concil Brit. p. 445 â—4â— Concil Brit. p. 621. and enjoyneth that they must be payed to the King and not to Rome as it was in the daies of Canutus and Edgar rendereth the reason thereof to be because it was the Kings Almes Secondly that it was an Almes onely from the King and out of his own Demesnes may seem not improbable because it was ex regali munificentia which could never be affirmed if the gift had been out of the estates of others Secondly it was granted onely out of such houses as yeelded thirty pence rent called vivae pecuniae because in those times rent was payd in Victuall so as it may seem that onely Farmes were charged herewith and not all mens Farmes neither for the generall income will never answer that proportion The particular hereof I shall in briefe set forth It appeareth in the former quotation that Offa charged this leavy upon the inhabitants dwelling in nine severall Diocesses viz. Hereford which contained the City and County adjacent 2. VVorcester containing the Cities and Shires of it and Glocester 3. Lechfield containing VVarwickeshire Cheshire Staffordshire Shropshire and Darbishire 4. Leicester with the County adjacent 5. Lincolne with the County adjacent 6. Dorchester whereto belonged Northamptonshire Buckinghamshire Bedfordshire Huntingtonshire Cantabridgeshire and halfe Hartfordshire 7. London with Essex Middlesex and the other halfe of Hartfordshire 8. Helmham with Norfolke 9. Domuck or Dunwich with Suffolke In which nine Diocesses were two and twenty shires And he further granted it out of Spatinghenshire now Nottingham whose Church belonged to Yorke But in Ethelwolfes time the grant was enlarged and extended into fifteen Diocesses which together with their severall charge out of the English Martyrology I shall particularize Fox Martyr p. 340. as followeth  l. s. d. Cantuar. Dioces 07. 18. 0. London 16. 10. 0. Roffen 05. 12. 0. Norwic. 21. 10. 0. Elienum 05. 00. 0. Lincoln 42. 00. 0. Cistrens 08. 00. 0. VVinton 17. 06. 8. Exon 09. 05. 0. VVigorn 10. 05. 0. Hereford 06. 00. 0. Bathon 12. 05. 0. Latisburgh 17. 00. 0. Coventree 10. 05. 0. Ebor 11. 10. 0.  200. 06. 8. The whole sum whereof not exceeding two hundred pounds six shillings and eight pence will not amount to seven hundred pounds of now currant money if the weight of a penny was not lesse in those times then in the reigne of Edward the first when it was the twentieth part of an ounce and that the twefth part of a pound as by the statute thereof made may appeare Nor can the difference be much if any in regard of the vicinity of the time of this extract to that of the Statute for though no particular date thereof appeare yet it seemeth to be done after the translation of the See from Thetford to Norwich which was done in VVilliam Rufus his time and after the erecting of the Bishoprick of Ely Brit. Antiq. p. 18. which was in the time of Henry the first Now albeit this charge was in future times diversely ordered and changed yet upon this account it will appeare that not above eight and forty thousand and eighty houses were charged in this time of Edward the second with this assessement which is a very small proportion to the number of houses of husbandry in these daies and much more inferiour to the proportion of houses in these times if Polydores observation be true that in the Conquerours time there were sixty thousand Knights fees and as others fifty thousand Parishes It may therefore be rather thought that none but the Kings farmers were charged herewith notwithstanding the positive relations of writers who in this case as in most others wherein the credit of Rome is ingaged spare not to believe lightly and to write largely And thus for their sevenfold Church-officers we have also as many kinds of constant maintenance One in Lands and Tenements and six severall kinds out of the profits and the personall estate besides the emergent benefits of oblations and others formerly mentioned CHAP. XII Of the severall Precincts of Jurisdictions of Church-governours amongst the Saxons THe Church-officers thus called to the Drumme and payd are sent to their severall charges over Provinces Diocesses Deaneryes and Parishes Malms gest Reg. lib. 1. c. 4. as they could be setled by time and occasion Before the Saxons arrivall London had the Metropolitane See or was chiefest in precedency for Archbishops the Britons had none Afterwards by advice of the wise men Canterbury obtained the precedency for the honour of Austin who was there buried The number of Provinces and their severall Metropolitan Sees was first ordered by advice of Pope Gregory Bed hist lib. 1. cap. 29. who appointed two Archbishops in Saxony the one to reside at Canterbury the other at Yorke and that each of them should have twelve Bishops under them but this could never be compleated till Austin was dead as by the Epistle of Kenulphus to Pope Leo appeareth Malmesb. loco citat Nor then had the Pope the whole power herein intailed to his Tripple-Crowne for the same Epistle witnesseth that the councell of the wise men of the Kingdome ruled the case of the Primacy of Canterbury Vit. Offae Malmesb. Concil Brit. 133. Antiq. Brit. Antiq. Brit. p 54. M. Westm An. 775. And Offa the King afterward divided the Province of Canterbury into two Provinces which formerly was but one The Precincts of Diocesses have been altered ordinarily by Kings or the Archbishops and their Synods as the lives of those first Archbishops set forth Theodore had divided his Province into five Diocesses and within a hundred yeeres after Offa we finde it increased unto eleven Diocesses Diocesses have also been subdivided into inferiour Precincts called Denaries or Decanaries the chiefe of which was wont to be a Presbyter of the highest note called Decanus or Archpresbyter Ll. Edw. conf cap. 31. Lindwood l. 1. de constit c. 1. The name was taken from that Precinct of the Lay-power called Decennaries having ten Presbyters under his visit even as the Decenners under their chiefe The smallest precinct was that of the Parish the oversight whereof was the Presbyters work they had Abbeys and other religious houses but these were however regular amongst themselves yet irregular in regard of Church-goverment whereof I treat CHAP. XIII Of the manner of the Prelates government of the Saxon Church HAving
discoursed of the persons and precincts it now befals to touch upon the manner of the government of the Church by the Saxon Prelates which was not wrapped up in the narrow closet of private opinion but stated and regulated by publique Councell as well in the making as executing of lawes already made This course was learned from Antiquity Malmesb. gest pontif lib. 3. fo 263. and inforced upon them by a Roman constitution in the case that concerned Archbishop Theodore and Wilfrid upon this ground Quod enim multorum concilio geritur nulli consentientium ingerat scandalum These are most ordinarily called Synods although at the pleasure of the Relator called also Councels and are either Diocessan or Provinciall or Nationall and these either particular or generall Baronus An. 930. The generall consisted of all the Bishops and Clergy and such was the Synod under Archbishop Dunstan called The Nationall Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz England Sacrosancta authoritate nostra Synodali unitate Malmesb. gest pontif lib. 3. p 163. An. 680. and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councels and needlesse to instance amongst so many particulars The Provinciall Synods were sometimes convocated by the King and sometimes by the Archbishop Concil Brit. p. 191 310 318. and sometimes joyntly The Diocessan were called by the Bishop In the Nationall and Provinciall sometimes Kings moderated alone sometimes the Archbishop alone and sometimes they joyned together Ibid. 316 318 387. The Assistants were others both of the Clergy and Laity of severall ranks or degrees and it seemeth that women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for government and because few Lawes passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and alwaies the Lords and others Yet if the matters concerned the Church in the first act the King though present the Archbishop was neverthelesse president Concil Brit. 245 327 387. as it befell at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the reigne of Edward the elder though the Synod was called by the King yet the Archbishop was president Concerning all which it may be in the summe well conceived that the penning of the Councels aforesaid either the Clergy being the pen-men were partiall or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his owne person and sometimes deputed the Archbishop thereto The executing of Lawes was for the most part left to the Diocesan Synods yet when the cases concerned great men the more generall Councels had the cognisance and therein proceeded strictly sparing no persons of what degree soever Examples we finde hereof M Westm An. 955 958. Concil Brit. 479. amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdome for in the quarrell between Cenulphus the King and Archbishop Wilfrid the whole Kingdome was under interdict for six yeeres space and no Baptisme administred all that time Ibid. 332. Nor were they very nice in medling with matters beyond their Sphere even with matters of property for at a provinciall Councell for so it s called they bore all down before them even the King himselfe as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham Ibid. 319 332. Concil Brit. p. 334. The like also of another Synod concerning the Monastery of Westburgh It s true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much businesse and by that meanes a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doores after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their severall Diocesses The worke therein was to preach the word as a preparative then to visit inquire of the manners of the Clergy in the worship of God Mag. cent 8. cap 9. and of all matters of scandall and them to correct These Synods were to be holden twice every yeere at certaine times and if they met with any matter too hard for them to reforme they referred it to the Provinciall or Nationall Synod CHAP. XIV Of Causes Ecclesiasticall AS the power of Synods grew by degrees so did also their worke both which did mutually breed and feed each other Heresie An. 446. Their worke consisted in the reforming and setling matters of doctrine and practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first president of Synods that we have extant and herein it will admit of no deniall but in the infancy of the Church the teachers are the principall Judges of the nature of errour and heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes it selfe party in judging of truth and errour joyntly with the first teachers And therefore it s not without reason that in that first Synod although Germanus was called Judex Beda hist l. 1. yet the people hath the name of Arbiter and t is said that they did contestare judicium Blasphemy Blasphemy was questionlesse under Church-censure but I finde no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the tongue of the delinquent Concil Brit. p. 341. An. 840. but it may be feared that neither the Saxons nor their Roman teachers were so zealous for the honour of Gods name as to regard that odious sinne unlesse we should account them so holy as that they were not tainted therewith and so needed no law But Apostacy was an early sinne and soon provided against Apostacy An. 314. Concil Brit. 41. Ibid. 376. the Church-censure was allowed of in Britaine before the Saxons Church had any breath
they had usurped in their Synods which they held only for Church-visitation which they could never have because the Sapientes regni had their Votes therein as freely as they Nor could the Prelates by any Law entitle themselves to such power or priviledge so contrary to the priviledge of the Wtttagenmote For though it be true that the German Priests had a liberty to be present in these grand assemblies and to have some presidency therein as to command silence c. yet it s no title to these Tacitus unlesse they will interest themselves as their successors to possesse by a jus Divinum that jus Diabolicum which those Priests formerly had in a way of immediate providence somewhat like the possession of the mantle of Eliah found by Elisha They might I grant plead the title from Kings but it must be granted also that Kings as yet had no more power over the Church then in the Common-wealth Nor could they have that from the Lords which the Lords never had but was ever accounted amongst the majora and of which the Wittagenmot had the onely cognisance as it will appeare in some particulars ensuing Unto the King Lords and Clergy must be added as I said the Freemen to make up the Micklemote compleat and though it be true that no monument of story speaks of this grand meeting from their being in Germany untill after the comming of Austin yet when as the Saxon Histories then finde them in the same condition that the German story leaves them it s very probable that in the intervall they continued their wonted custome although they had no Learning to leave monuments thereof unto the world And hereof the examples are not rare in those remembrances that those ancient times have left us For within six yeeres after Austins arrivall Aethelbert cals a Common-councell tam cleri quam populi Concil Brit. 126. Ll. Sax. Lamb. cantab. fo 1. Ibid. fo 22. Ibid. fo 53. Ina after him made Laws suasu instituto Episcoporum omnium senatorum natu majorum sapientum populi in magna servorum Dei frequentia Alfred after him reformed the former Lawes consulto sapientum After him Aethelsian called a Councell in which was the Archbishop and with him the Optimates sapientes frequentissimi besides others whereof I shall treat now that I come to the matters handled in this Court The matters in agitation in the Wittagenmot generally were all both of publique and private concernment That which concerned the publique were such as regarded removall of inconveniences such as are lawes for leagues and affinity with other Nations for preventing of war and thus became the Saxons and Britons united Concil Brit. p. 219. Ll. Lamb. Cantabr fo 36. and the mortall feude between those two Nations laid aside and they made one and the Saxons and Danes reconciled by a covenant agreed unto and sworne between both Nations The like also may be said of their making of war of defence against forrain invasion Matters of publique and general charge also were debated and concluded in that assembly as the payment of Tythes Ll. Edw. Lamb. Cam. fo 139. it s said they were granted Rege Baronibus populo Such also as concerned the Church for so Edwin the King of Northumberland upon his marriage with a Christian Lady being importuned to renounce his Paganisme answered he would so doe Antiq. Brit. p. 51. if that his Queens Religion should be accounted more holy and honourable to God by the wise men and Princes of his Kingdom And all the Church Laws in the Saxons time were made in the Miklemote Monasteries were by their generall consent dedicated Concil Brit. 127. Ibid. 321. their possessions confirmed The City of Canterbury made the Metropolitane matters also of private regard were there proceeded upon as not onely generall grievances but perverting of justice in case of private persons as in that Councell called Synodale concilium under Beornulfus the Mercian King Ibid. 332. quaesitum est quomodo quis cum justicia sit tractatus seu quis injuste sit spoliatus The name of which Councell called Synodall mindeth me to intimate that which I have often endeavoured to finde out but yet cannot viz. that there was any difference between the generall Synods and the Wittagenmot unlesse meerly in the first occasion of the summons And if there be any credit to be allowed to that booke called Cap. 1. Sec. 3. The Mirror of Justices it tels us that this grand assembly is to conferre of the government of Gods people how they may be kept from sinne live in quiet and have right done them according to the Customes and lawes and more especially of wrong done by the King Sec. 2. Queen or their children for that the King may not by himselfe or Justices determine causes wherein himselfe is actor Cap. 4. Sec. 11. and to summe up all it seemeth a Court made to rise and stoop according to occasion The manner of debate was concluded by vote and the sum taken in the grosse by noise Tacitus Plut. Lycurg Thucyd. lib. 1. de Lacedem like to the Lacedemonians who determined what was propounded clamore non calculis yet when the noise was doubtfull they tooke the votes severally The meeting of the Saxons at this assembly in the first times was certaine Tacitus viz. at the new and full Moon But Religion changing other things changed these times to the Feasts of Easter Pentecost and the Nativity at which times they used to present themselves before the King at his Court for the honour of his person and to consult and provide for the affaires of his Kingdome and at such times Kings used to make shew of themselves in their greatest pompe Crowned with their Royall Crown This Custome continued till the times of Henry the second An. 1158. who at Worcester upon the day of the Nativity offered his Crown upon the Altar and so the ceremony ceased This grand Assembly thus constituted was holden sacred and all the members or that had occasion therein were under the publique faith both in going and comming unlesse the party were fur probatus If a member were wronged the delinquent payed double dammages and fine to the King by a Law made by Aethelbert above a thousand yeeres agoe Concil Brit. p. 127. Ll. Canut p. 2. cap. 79. Ll. Edw. cap. 35 This priviledge of safe passe being thus ancient and fundamentall and not by any law taken away resteth still in force But how farre it belongeth to such as are no members and have affaires neverthelesse depending on that Court I am not able to determine yet it seemeth that priviledge outreacheth members unlesse we should conceit so wide that the state did suppose that a member might be a notorious and known thiefe Lastly this assembly though it were called the Wittagenmot or the meeting of wise men yet all that would come might be
discipline Ll. Canut cap. 58. if they followed their rule which was made not by the arbitry of the Generall but by Parliament These amongst other scattered principles concerning Sea-affaires may serve to let us know that the Law-Martiall and that of the Sea were branches of the positive Lawes of the kingdome setled by the generall vote in the Wittagenmot and not left to the will of a lawlesse Generall or Commander so tender and uniforme were those times both in their Laws and liberties CHAP. XXIII Of the government of the Saxon Kingdome in times of peace and first of the division of the Kingdome into shires and their Officers IF the Saxon government was regular in time of warre how much rather in time of peace All great works are done by parcels and degrees and it was the Saxons ancient way in Germany to divide their Territory into severall circuits or circles and to assigne to each their severall Magistrates all of them ruled by one Law like one soule working in severall members to one common good Thus they did here in England having found the Land already divided into severall governments they likewise what they conquered divided into severall parts called Comitatus or Counties from the word Comes that signifies a companion and the Counties thence called are nothing but societies or associations in publique charge and service But the Saxon word is shire or share that is a portion or precinct of ground belonging to this or that person or great Town and bearing the name of that person or Town and sometimes of the scituation of the people as North or South folke East or South Sex or Saxons This division by the names seems to be of Saxon originall and though by the testimony of Ingulfus and other writers Seld. Tit. Hon. it might seem to be done by Alfred yet it will appeare to be more ancient if the reader minde the grant of Peter pence made by King Offa wherein is recorded the severall Diocesses and shires out of which that grant was made under the very same names that they own at this day M. Westm An. 794. and that grant was more ancient then Alfreds time by the space of 80 yeeres Each of these Shires or Counties had their two chiefe Governours for distributive justice of these the Sheriffe was more ancient and worthy Officer being the Lieutenant Sheriffs and ayded by the power of the County in certaine cases for his Commission extended not to leavy warre but to maintain Justice in that County and within the same and in this work he was partly ministeriall and partly judiciall in the one he was the Kings servant to execute his Writs in the other he regulated the Courts of justice under his survey Ll. Edw. c. 35. He was chosen in the County Court called the Folkmote by the votes of the Freeholders and as the King himselfe and the Heretock were intituled to their honour by the peoples favour Coroners The Coroner though in originall later was neverthelesse very ancient he was the more servant or Officer to the King of the two His worke was to enquire upon view of manslaughter and by indictment of all felonies as done contra coronam which formerly were onely contra pacem and triable onely by appeale Miror cap. 1. Sec. 13. As also he was to inquire of all escheates and forfeitures and them to seize He was also to receive appeales of Felonies and to keep the rolls of the Crown pleas within the County It s evident he was an Officer in Alfreds time Miror p. 300. for that King put a Judge to death for sentencing one to suffer death upon the Coroners record without allowing the delinquent liberty of traverse This Officer also was made by election of the Freeholders in their County Court as the Sheriffe was Fits N. Br. 163 164. and from amongst the men of chiefest ranke in the County and sworn in their presence but the Kings Writ lead the worke CHAP. XXIV Of the County Court and the Sheriffs Torne THe government of the County in times of peace consisted much in the administration of justice which was done in the publique meetings of the Freeholders their meetings were either in one place or in severall parts of the County in each of which the Sheriff had the mannaging of the acts done there Folkmote or County court The meeting of the Freemen in one place was called the Folkmote by the Saxons saving the judgement of the honourable reporter Coke instit 2. p. 69. and of latter times the County court the work wherein was partly for consultation direction concerning the ordering of the County for the safety and peace thereof such as were redresse of grievances election of Officers prevention of dangers c. and partly it was Judiciall Miror p. 147. in hearing and determining the common pleas of the County the Church affaires and some trespasses done therein but not matters criminall for the Bishop was Judge therein together with the Sheriffe and by the Canon he was not to intermeddle in matters of blood yet neither was the Bishops nor Sheriffs worke in that Court other then directory or declaratory for the Free-men were Judges of the fact and the other did but edocere jura populo Ll. Canut Miror cap. 1. Sec. 15. yet in speciall cases upon petition a Commission issued forth from the King to certaine Judges of Oier to joyn with the others in the hearing and determining of such particular eases Miror cap. 5. Sec. 1. But in case of injustice or errour the party grieved had liberty of appeale to the Kings Justice Nor did the Common pleas originally commence in the County court Ll. Canut Ll. Edgar unlesse the parties dwelt in severall Liberties or Hundreds in the same County and in case any mistake were in the commencing of suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preeminence Concil Brit. p. 197. tit 22. In those ancient times this County court was to be holden but twice a yeere by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings especiall Writ Ll. Edw. cap. 35 or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the free men of the County assembled to learne the Law to administer justice Ll. Edw. cap. 35 to provide remedy for publique inconvenience and to doe their fealty to the King before the Bishop and Sheriffe upon oath and in the worke of administring justice Ll. Edw. cap. 4. causes concerning the Church must have the precedency so as yet the Canon law had not gotten footing in England The other Court wherein the Sheriffe had the directory was in the meeting of the free men in severall
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
meeting or concourse of people for the sale of such commodities as their neighbourhood would not take off their hands And thus the greater Towns that had walls or Castles became the greatest Markets and others lesse and this made the neighbourhood of those Towns to repaire thither to buy as others to sell But time discovering a double inconvenience herein viz. that by these lesse publique sales in smaller Villages where little or no care of right or justice was had and by which means the word Pagan became a word of reproach many mens goods by clandestine contracts were lost and no care had of their recovery and which was yet more prejudiciall to the publique that the greater Towns appointed for the strength and defence of the Kingdome became ill provided with supply of victuall either for the present or future and what was had for the most part was gotten at the second hand and higher rate then the Countrey Villages had The wise men by publique edict laid a restraint of Markets in smaller Villages and more private places and thus the greater Towns having Markets formerly became more publique Markets not by any new right or priviledge from the Crown for it neither had such power nor could have but upon usurpation against the common right of such Towns and places of publique defence This restraint upon the reasons aforesaid was made first in the Saxon times as may appeare by their Laws but more clearly declared and confirmed afterwards by the Laws of the Normans which never gave any new right of Market overt unto those places of publique defence but onely did inhibit the same in the smaller Villages and private places In which respect although the Kings of this Nation in future times tooke leave to abolish that restraint which did lie upon some of those more private places for certaine reasons of State and so these places became Markets overt which formerly were none yet could they never take away that priviledge which nature it selfe cast upon those greater Towns being the very limbs of the Kingdome without wrong done to common right and the publique good nor abridge them of that power but that they might still use their liberty at times and places within their precinct as might best conduce with the benefit of the inhabitants of those places even as any particular free man may govern his own estate as him liketh best And thus upon the whole matter it s to be concluded that the ancient Burroughs of this Kingdome properly doe not hold their liberty of Market overt by prescription or charter but by common right and not as a Corporation made by charter but as they are a multitude of people anciently gathered together and united upon whom the strength and wealth of the Kingdom doth or did formerly much more depend then on any of the smaller Villages open Towns even as every free man possesseth and useth his proper inheritance and estate without particular priviledge derived from the Crown nor can the King take away the liberty of Market overt from such places more then he can take away the liberty of buying and selling from any free man to whom the Law alloweth a liberty of ownership This I submit to the censure of the learned in the Laws in regard of the different opinions concerning the same This liberty of Township thus made and the place and people inhabitants thereof being of such consequence in the publique administration had for their better support and safety liberty of Fortification Ll. Edw. cap. 1. Ll. Aethelst cap. 12. Ll. Aethelst cap. 13. Gloss and power to charge one another with the maintenance of these Fortifications by an imposition called Burghbote and held their Tenements under a rent to their Lord or King called Burgage as they were a body aggregate CHAP. XXXIV Of the Forrests BEsides other prerogatives of the Saxon Kings they had also a Franchise for wild beasts for the Chase which we commonly call Forrest being a precinct of ground neither parcell of the County nor the Diocesse nor of the Kingdome but rather appendant thereunto This savoured of the old German sport but by custome turned from sport to earnest For although in the first times the Saxons were so few and the Country so spacious that they might allow the beasts their farme as well as themselves their own People neverthelesse so multiplyed as of necessity they must intercommon either with Beasts or Fishes the former whereof however more cleanly yet the latter had the surest footing and was chosen as the least of two evils rather then for any likelyhood of good neighbourhood for as nature taught beasts to prey for themselves so men to defend their owne and this bred such a fewd between beasts and men as that Kings doubting to loose their game tooke in with the weaker that the world might see the happinesse of England where beasts enjoy their Liberties as well as men But this was as it were by compromise for it had been very hard to have pleased the free men who had liberty of game within their own ground by common right Ll. Canut c. 77 and to preserve the Kings liberty of Forrest coincident therewith had not the King imployed on the one side the power of a Dane that looked somewhat like a Conquerour and on the other side that which looked as like to the bounty of a King in allowing liberty of ownership to men inhabiting within the bounds of the Forest which at the first was set apart onely for the Kings pleasure and all his wits to make a Law somewhat short of a full freedome and yet outreaching that of bondage which we since have commended to posterity under the Forrest charter and yet for all that it proved a hard matter for Kings to hunt by Law and the Law it selfe a yoke somewhat too heavy for a Common-wealth to beare in old age if selfe denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of justice THus farre of the severall Tribes and members of this Commonweale which like so many Conduit heads derived the influence of government through the whole body of this Island and in every of which Judiciary power acted it selfe in all causes arising within the verge of that precinct some of which had more extraordinary triall before the King and his Councell of Lords according as the parties concerned were of greater degree or the cause of more publique concernment Examples hereof are the cases between the Bishop of Winchester and Leoftin in Aetheldreds time and between the two Bishops of Winchester and Durham in Edwards time but custome made this Court stoop to smaller game in latter times and to reach at the practise of the County court by sending the Kings Writs to remove certaine causes from the cognisance of those rurall judicatories to their sublime determination Glanvil lib. 6. cap. 6 7 8. And thus became the Councell of Lords as an Oracle to
forefathers recepitque satisfactionem universa Domus Tacitus It would be too tedious to recite all the particular Laws with their changes and therefore they shall be left to the view in the severall Laws of Alfred Edmond Canutus and Edward the Saxon Kings Yet one custome first begun by the Danes Englishire Stamf. lib. 1. cap. 10. Miror cap. 1. Sec. 13. I cannot omit That if a man were found slain whose parents or friends were unknown by common intendment he was to be presumed to be a Dane and then if the delinquent were not taken nor fled to Sanctuary nor known where he is the whole Hundred was amerced for the escape Bracton lib. 3. tract 1. cap. 15 but if the party slain was known to be of English parents it was otherwise This custome lasted long after the Normans time the Dane being onely changed into the Norman Breach of peace Batteries Maimes Imprisonments Alured praes Lam. 19. and was called Englishire Batteries maimes imprisonments and other breaches of peace were punished by fine which they called Fightwitt Grithbrece or Frithbreck and the delinquent ordinarily put in sureties for the peace for future time The fine was increased by the number of delinquents joyning in the fact for if seven joyned it was a riot and the fine was then called Flothbote If the number were five times so many viz. thirty and five then it was a rebellion or warre Secondly the fine was increased by the time or season of the fact as in Lent or while the Army was in the field because in the first case the holy time was prophaned in the second the Country was more endangered when the strength was abroad and the Army might be discouraged at the news of the disturbance at home And therefore the Saxons punished this with death or fine sutable Ll. Edw. c. 31. Ll. Sax. cap. 36. Ll. Inae cap. 6. Thirdly the fine was the greater in case of the excellency of the place where it was holy ground or in the presence of great persons such as the King or Bishop The seventh Commandement Adultery amongst the old Germans was holden a crime of a high nature the penalty of the woman that committed that crime was death I finde not what became of the man in latter times of the Saxons it grew lesse penall Baronus Anal. 745. num 5. Concil Brit. 558. Ll. Canut 50. reg 22. and more common By Alfreds Law it was finable and the fine called Legierwit By Canutus the man was fined or banished the woman to lose her nose eares and her portion Incest was more penall to the man then Adultery and yet it touched not his life Incest Ll. Sax. 48. reg 19. Robbery amongst the Lacedemonians was accounted but a trick of youth the Athenians thoughts were more severe The Germans likewise differed in their censures concerning it The eighth Commandement the Saxons punish it with death but the Angles with fine onely yet Ina the King made it mortall and Canutus followed him therein Lind Ll. Ang. Sax. Ll. Sax. 4. reg 3 Miror 262. Burning of woods Burglary Ll. Edm. cap. 6. Ll. Canut p. 59 Trespasses And Edward the Confessor limited that punishment to thefts of twelve pence in value or above burning of woods was fineable by Inaes law but Burglary was felony In King Edmunds time onely the Danes made it finable possibly being guilty in their own consciences of their own propensity to rapine and plunderings This priviledge of the dwelling house was anciently called Hamsoca or Hamsoken or Hamsokne Trespasses committed upon ground were all comprehended under the generall name of Ederbrece or hedge-breaking and the penalty was not onely the dammage to the party but also fine to the King upon action which in these daies passeth under the name of Quare clausum fregit according to the words of the Writ Ll. Sax. cap. 36. The dammages were more or lesse according to the time or season when it was done for if when the Army was abroad the dammages were doubled and in like manner if done in Lent time If the trespasse was done by a beast the owner must pay the dammages Ll. Inae 56. Ibid. c. 40. But if it were occasioned through the complainants default as through his gap no dammages were paid The constant fine to the King in all such trespasses was by Alfreds law set at five shillings Ll. Sax. c. 36. Other actions also were then used as touching dammage done to goods and actions upon the case for in Alfreds time the Plantiff recovered not onely dammages for trespasses done to possessions and goods Miror p. 301. but also costs for injuries in point of scandall and defamation in case the complainant specially declareth that he is thereby disabled or indammaged in his preferment and maketh proofe of the same suitable unto the forms of our pleadings at this day The ninth Commandement which conclude with per quod c. or deterioratus est c. The Saxons were utter enemies to perjury they punished a Ll. Aethelst c. 10. with eternall discredit of testimony b Ll. Canut c. 6. and sometimes with banishment or with grievous fines to the King and mulcts to the Judge Spec. Sax. l. 3 art 53. For that difference I finde observed in those daies between fines and mulcts albeit the more ancient times used them for one and the same for so the Historian pars mulctae Regi In all these matters where any interest was vested in the Crown the King had the prerogative of pardon yet alwaies the recompence to the party was saved Ll. Edw. c. 18. besides the security of the good behaviour for time to come as the case required CHAP. XLI Of the Lawes of property of Lands and goods and their manner of conveyance THus passing over some tops of Saxon penall Laws besides the general rule or law of eye for eye tooth for tooth c. it now remains as lightly to glance at a few generals concerning the setling and property of possessions in point of title Miror cap. 5. Sec. 1. Concerning which although it be true that the conquerours of this part of the Isle were a body aggregate of many Nations or peoples and so divers customes must necessarily settle by common intendment in severall places according as they chose their habitation Inheritance yet the generall custome of the Germans as touching discent of inheritance was to the eldest sonne For Tacitus speaking of the German Cavalry saith that the horse of the party dead went not to the eldest sonne ut cetera but to the most valiant man amongst them of that linage which words ut cetera doe plainly intimate that other matters of profit passed to the eldest sonne in point of descent Nor can I conceive how men should be induced to conceit that the custome of Gavelkind was the ancient generall custome of
the Germans It s true the words of the same Historian have misled some the words are Haeredes tamen successores cuique Liberi these taken collectively I grant may import somewhat tending that way but they may as properly be taken disjunctively that the children inherite by course and if none such were then the brothers if they failed then the unkles And it s not onely evident that in the publique succession to the Crown they had an eye this way but in the descent of private and particular estates as by many instances out of those old Histories may appeare and had any other custome been generall Alfreds rule by Moses Law had never succeeded nor could that other custome hold out against the constant desire of the Saxons to perpetuate their families in greatnesse and honour all which besides the expresse laws set forth in the Codes are in my conceit sufficient to induce an historicall faith that the generall course of descent was to the eldest sons and not to all joyntly Neverthelesse out of this estate of inheritance divers particular estates were created as well by common custome as by the especiall act of the owner of such estate Such of them as were wrought by custome was occasioned from marriage whereby if the man was setled of such estate as formerly hath been recited and died Dower his wife surviving by ancient custome she had her dower or third part of such estate of inheritance This custome though ancient yet was not originally from the Germans but from the Latines who used to give dower with the man Plut. vit Solon Apotheg Lacon and receive portion with the woman But the Germans learned from the Greeks otherwise for the Laws both of Solon and Lycurgus forbad the latter lest marriages should be made for reward and not grounded upon affection which as they conceived would be a means to maintaine the strength of mankind in generation And therefore Tacitus noteth this by way of Antithesis Dotemnon uxor marito sed uxori maritus offert The dower that was given in the first times was goods and these were utensiles for warre And the wife many times returned to the man tokens of her love in the same kind and not as gages of future maintenance unlesse we shall account warre their proper calling from whence their livelihood issued Succeeding times growing more calme changed the custome of fighting into trading and taught them to preferre the stock gotten by commerce before that of warre and so the dower was changed This course continued all the Saxons time for ought I can finde for not much above threescore yeeres before the conquest it was by a publique law confirmed Ll. Sax. Lamb. Edm. fo 76. that the Bridegroome before marriage should set forth that portion of goods that should be his wifes Ll. Sax. 50. Reg. 22. and these were ever afterward holden her own proper goods But if no such provision was made before marriage then the law or custome gave the wife halfe her husbands goods if she outlived him and if there were children then the whole estate in goods to provide for her selfe and them untill she tooke a second husband but if the husband suffered death as a malefactor the wife was to have but one third part Ll Sax. Lam. fo 14. Ll. Inae cap. 58 I finde no footsteps of Dower in Lands untill the Normans time who were also as well owners of the wifes personall estate as of their persons and before which time the Saxon wives in divers regards were more absolute and independant I say not more happy because they were never one with their husbands nor were they ever under the Law of free pledge as wives nor was the husband his wifes pledge as he was her husband although as a master he was free pledge for his servants for the Law was that in case the husband carried his wife away into another Lordship Ll. Edm. Lamb cap. 7. as he must give pledges that his wife shall have no wrong so she must give pledge by her friends that she shall do no wrong and she passed therefore as an appurtenant to her husband then in unity with him and her estate or portion was rather appurtenant to her then him for if she failed in her good carriage to her husband she was to make amends out of her own estate to her husband and if her estate sufficed not then her pledges were to satisfie the husband Ll. Sax. 50. Reg. 22. Neverthelesse what failed in the relation of the woman to the man was supplied in the relation of the man to the woman for besides the respect the men bare to the women as their wives they honoured them as German women that admired valour in all Idolized it in their husbands and shared in it themselves and upon occasion merited thereby not onely to be companions in honour but triumphers above men ye their Commanders and governours Nor was this the originall trick of the rude and uncompt Germans or Barbarous Britons but of the wise Greeks and received as may be supposed from the Lacedemonians upon as good ground as the wise of Leonidas the Lacedemonian King rendred who being asked why the Lacedemonian women ruled their husbands It s true said she Curtesie of England for we onely know how to obey our husbands A second particular estate which the Law derived out of the inheritance was advancement to the husband for the Saxons were not so stupid as to refuce favour proferred and therefore they made a law of Counter-tenure to that of Dower which we commonly call tenure by the curtesie of England which was but a perquisite of the wives estate given to the husband in case he over lived his wife and had issue by her born alive The name was probably given by the Normans who as it seemeth had no such custome and therefore they gave it the name from the English albeit since that time Scotland hath also allowed it amongst them who might probably bring it into this Kingdome or Country amongst the mingled people Ll. Alm. tit 92. Lindenbr cod for this custome or law is found amongst the ancient Almain laws differing onely from the law this day in the evidence of the title which now ariseth upon the birth of the child heard to cry when as in those daies the title vested not unlesse the child opened his eyes ut possit videre culmen domus quatuor parietes which toucheth not onely the opening of the eye but also the rowling of it about Estates that were derived out of the estate of an inheritance by the act of the party Estate taile either were such as concerned the whole inheritance or part thereof That which concerned the whole inheritance was nothing but a parcelling of it out according to the will of the giver and this was afterwards called estate Taile which passed also amongst some places by way of custome Ll.
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
And as at Tenis the Dane and Bishop served each other with the fond Countrey man that whether Lord Dane or Lord Bishop was the greater burden is hard to be determined Thus became ambicious Prelacy in its full glory and the poore Church of Christ clouded in darknesse and little hold left for recovery but onely by the liberty of the Saxon freeman which the Danes could never conquer not for want of will or power but of time and occasion for the Crown returned to the Saxon line againe after the halfe age of one man although it was worn by three so God would have it nor did any monument of the Danish government remain saving a few customes in some places which shew rather that the Danes were there then ruled here To summe up all The Saxon Commonweale was a building of greatest strength downward even to the foundation arched together both for peace and warre That by the law of Decenners wherein Justice was the bond this by their armies gathered not by promiscuous flocking of people but by orderly concurrance of families Tacitus kindreds and Decenners all choosing their own leaders and so honour love and trust conspired together to leave no mans life in danger nor death unrevenged It was a beautifull composure mutually dependant in every part from the Crown to the cloune the Magistrates being all choice men and the King the choicest of chosen election being the birth of esteem and that of merit this bred love and mutuall trust which made them as corner-stones pointed forward to breake the wave of danger nor was other reward expected by the great men but honour and admiration which commonly brought a return of acts of renown Lastly it was a regular frame in every part squared and made even by Lawes which in the people ruled as lex loquens and in the Magistrate as lex intelligens all of them being grounded on the wisdome of the Greekes and Judicials of Moses Thus the Saxons became somewhat like the Jewes divers from all other people their lawes honourable for the King easie for the subject and their government above all other likest unto that of Christs Kingdome whose yoke is easie and burthen light but their motion proved so irregular as God was pleased to reduce them by another way CHAP. XLIV Of the Norman entrance THus was England become a goodly Farme The Britons were the owners the Saxons the occupants having no better title then a possession upon a forcible entry with a continuando for the space of foure hundred yeares seldome quiet either from the claime and disturbances of the restlesse Britons or invading Danes who not onely got footing in the Country but setled in the Throne and after gave over the same to the use as it proved of another people sprung from the wilde stock of Norway and thence transplanted into a milder Climate yet scarcely civillized that in one Isle the glory of Gods bounty might shine forth to all the barbarisme of Europe in making a beautifull Church out of the refuse of Nations These were the Normans out of the continent of France that in their first view appeared like the pillar of the cloud with terrour of revenge upon the Danish pride the Saxon cruelty and Idolatry of both peoples but after some distance shewed like the pillar of fire clearing Gods providence for the good of this Island to be enjoyed by the succeeding generations Nor was this done by revelation or vision but by over-ruling the aspiring mind of Duke William of Normandy to be a scourge unto Harold for his usurpation and unto the people for their causelesse deserting the royall stemme yet because the haughtiest spirit is still under fame and opinion and cannot rest without pretence or colour of right and justice the Duke first armed himselfe with titles which were too many to make one good claime and served rather to busie mens minds with musing whiles he catcheth the prey then settle their judgements in approving of his way First he was cousin german to the Confessor and he childlesse and thus the Duke was nigh though there were nigher then he but the worst point in the case was that the Duke was a bastard and so by the Saxon law without the line nor was there other salve thereto but the Norman custome that made no difference so as the Duke had a colour to frame a title though England had no Law to allow it and this was the best flower of his Garland when he meant to solace himselfe with the English as may appeare by what his sonne Henry the first sets forth to the world in his charter whereby he advanced the Abby of Ely into the degree of a Bishoprick and wherein amongst his other titles he cals himselfe sonne of William the great Spicileg Qui Edwardo Regi successit in regnum jure haereditario But if that came short he had the bequest of the Confessor who had designed the Duke to be his successor and this was confirmed by the consent of the Nobility and principally of Harold himselfe M. Paris 1. An. Brit. Eccles 96. and in assurance thereof promised his sister to the Duke in marriage This countenanced a double title one by legacy the other by election and might be sufficient if not to make the Dukes title just yet Harold's the more unjust and to ground that quarrell that in the conclusion laid the Dukes way open to the Crown And for the better varnish the Duke would not be his own judge he referres his Title to be discussed at the Court of Rome and so flattered the Pope with a judicatory power amongst Princes a trick of the new stamp whereby he obtained sentence in his own behalfe from the infallible chaire The Pope glad hereof laid up this amongst his treasures as an estoppell to Kings for times to come And the King made no lesse benefit of estoppel against the English Clergy that otherwise might have opposed him and of assurance of those to him that were his friends and of advantage against Harold that had gotten the Crown sine Ecclesiastica authoritate and by that meanes had made Pope Alexander and all the Prelates of England his enemies M. Paris 2. But if all failed yet the Duke had now a just cause of quarrell against Harold for breach of oath and covenant Hist vit Eadm 5. wherein if Harold chanced to be vanquished and the Crown offered it selfe faire he might without breach of conscience or modesty accept thereof and be accounted happy in the finding and wise in the receiving rather then unjustly hardy in the forcing thereof And this might occasion the Duke to challenge Harold to single combate as if he would let all the world know that the quarrell was personall and not Nationall But this maske soon fell off by the death of Harold and the Duke must now explaine himselfe that it was the value of the English Crown and not the title that brought
him over For though he might seem as it were in the heat of the chase to be drawn to London where the Crown was and that he rather sought after his enemies then it yet as soon as he perceived the Crown in his power he disputed not the right although that was Edgars but possessed himselfe of the long desired prey and yet he did it in a mannerly way as if he saw in it somewhat more then Gold and precious stones for though he might have taken it by ravishment yet he chose the way of wooing by a kind of mutuall agreement Thus this mighty Conquerour suffered himselfe to be conquered and stooping under the law of a Saxon King he became a King by leave wisely foreseeing that a title gotten by election is more certaine then that which is gotten by power CHAP. XLV That the title of the Norman Kings to the English Crown was by election SOme there are that build their opinion upon passionate notes of angry writers and doe conclude that the Dukes way and title was wholy by conquest and thence inferre strange aphorismes of state destructive to the government of this Kingdome Let the Reader please to peruse the ensuing particulars and thence conclude as he shall see cause It will easily be granted that the title of conquest was never further then the Kings thoughts if it ever entered therein else wherefore did he pretend other titles to the world But because it may be thought that his wisdome would not suffer him to pretend what he intended and yet in practice intended not at what he did pretend it will be the skill of the Reader to consider the manner of the first William's Coronation and his succeeding government His Coronation questionlesse was the same with that of the Ancient Saxon Kings for he was crowned in the Abbey of Westminster by the Archbishop of Yorke because he of Canterbury was not Canonicall At his Coronation he made a solemne covenant to observe those Laws which were bonae approbatae antique leges Regni Hoveden Eadmer Hist l. 1. p. 13. M. Paris vit Gulielm Malmsb l. 3. fo 154. Wigorn. An. 1066. Glossar Ll. Gul. Spicil 190. to defend the Church and Church men to govern all the people justly to make and maintaine righteous Laws and to inhibit all spoile and unjust judgements The people also entred into Covenant with him That as well within the Land as without they would be faithfull to their Lord King William and in every place to keepe with all fidelity his Lands and Honours together with him and against enemies and strangers to defend It is the selfesame in substance with the fealty that the Saxons made to their Kings as will appeare by the paralelling them both together The Saxons were sworn to defend the Kingdome against strangers and enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulnesse so as by the Saxon way the allegiance first terminated on the Kingdome and then as in order thereunto upon the King with his Lands and honours but the Norman either wholly omitted the first as needlesse to be inserted in a municipall Law it selfe being a Law in nature or else includeth all within the words Lands and Honours taking the same in a comprehensive sence for the whole Kindome and so made up the summe of the Saxon fealty in fewer figures Which may seem the more probable of the twaine because little reason can be rendred why the King should restraine that defence to his private lands if he claimed all by conquest when as all equally concerned him or why he should exclude the publique when as both himselfe and all he had was imbarked therein and it might subsist without him but contrarily not he without it appeareth not to my understanding nor did the thing enter into the Kings purpose if the file of his purposes be rightly considered For speaking concerning Castles Burroughs and Cities which are in nature of limmes of the Common-weale he saith that they were built for the defence of the people and Kingdome was this the service of walls and fortifications Ll. Gul. Spicil 61. and not much rather of men within those places of strength Certainly the plain English is that in time of breach of publique quiet and peace the subiects were bound to defend the Kingdome and in order thereto the people of the same and of the Kings right included in the publique defence else it were a strange conclusion that each man in particular and in their own person alone was bound to defend the Kings right but being imbodied the Kingdome And yet more clearly its apparent in that the service of the order of Knighthood which was the chiefe strength of the Nation in those daies was determined upon the service of the King M. Paris An. 1100 1213. and defence of the Kingdome or which is more plain for the service of the King in or for defence of the Kingdome as the statute of Mortmaine expounds the same Stat. 7. E. 1. But not to force the Kings sence by argument if the King had purposely omitted that clause of the Kingdomes safety as of inferiour regard to his own personall interest it was one of his rashest digressions wherein he soon espied his errour for in the middest of his strong and conquering army he held himselfe unassured unlesse he had a better foundation then that which must change with the lives of a few at the utmost And therefore besides the oath of fealty formerly mentioned he established a law of association that all free men should be sworn brethren Ll. Gulielm Spicil 59. 1. To defend the Kingdom with their lives and fortunes against all enemies to the utmost of their power 2. To keepe the peace and dignities of the Crown 3. To maintaine right and justice by all means without deceipt and delay Joyn then these two oathes together viz. that of fealty and this of fraternity and it will easily appeare that the allegiance of the English to the Norman Kings was no other then what might stand with brotherhood and tender regard of the publique above all and differing from the Saxon fealty onely in this that that was in one oath this in two Wherefore whatsoever respects steered in the reare of the Kings course it s lesse materiall so long as the vanne was right albeit that the sequell will prove not much different from the premises as will appeare in the foot of the whole account Thus entered the first Norman upon the Saxon Throne and as he had some colour of right to countenance his course William Rufus so had his sonne his fathers last will and yet he had as little right as he This was William Rufus that was of his fathers way but of a deeper die and therefore might well be called William Rufus or William in grain He was exceeding happy in the feare or favour of the
people for he had nothing else to make room for his rising True it is he had the good will of his father but he was dead and probably the people as little regarded it as he did them Nor was it ever observed that the English Crown was of so light account as to passe by devise of cestui que use and therefore though it was designed to him from his father yet both right and possession was left to the people to determine and maintaine The Clergy first led the way Eadmer hist Wigorn. M. Paris having fist taken a recognisance of him for his good behaviour towards them which he assured as farre as large promises and protestations would serve the turne and within one yeere after standing in need of the favour of the Commons to maintaine possession against his brother Robert he gave them as good security as the Clergy had which he kept in such manner that it was a wonder that one of so small interest in the Title but what he had by the peoples leave and favour should rule in such manner and yet die a King The favour of the people being like a meteor that must be continually fed or it soon goes out and fals for evident it is that the right of inheritance was his elder brother Roberts who was the braver man and more experienced souldier and upon these principles had obtained the love of the Norman Barons the flower of his fathers chivalry M. Paris An. 1088. the liking of the Clergy after they had found by experience the emptinesse of their hope in his brother William and was every way so superiour to his brother in advantages as we are left to believe that William got the day without any other ground but onely that God would so have it It s true the English stooke close to him but how they were gained or contained writers speake not but tell us of his promises which also they tell us were vaine and never had issue further then would stand with his profit Exit William Rufus Henry first and in comes his younger brother Henry the first of that name A Prince that excelled in wisdome and by it ruled his courage which served him so farre as his aimes and ends reached His title was no better then his fathers or brothers but rather worse for he had no colour of last will to propound him to the people and his elder brother Robert was still alive and by his service of the Church in the warre of Jerusalem might merit that respect of the Clergy as not to permit him to be a looser by so well deserving service as in those daies that was accounted Neverthelesse the English looke upon Henry as the fitter man for their turne being now at hand and Robert at Jerusalem and being a native born in England civilized into the English garb by education and of a wiser and fairer demeanure and more inclining to peaceable government which both Normans and English much inclined to as being weary of thirty yeeres service in the warres And therefore it s not marvellous if they applied themselves to him in a way of capitulation Math. Paris 1100. Eadmer Speed and lesse wonderfull if he hearkned thereunto and yet neither unadvisedly yeelded unto by him nor traiterously propounded by them as some in zeale to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himselfe to be just that he might be great and the people to submit unto justice that they might be free like as their ancestors were and themselves by the Law established ought to be For that capitulation was in substance setled by the ancient laws of the Saxons mixed with some additions of laws made by the Kings father with the joynt advice of the grand Councell of the Kingdom all which both the Norman Williams had often cofirmed by solemn protestations and promises however their actions upon sudden surprisall were malae consuetudines and exactiones injustae Math. Paris by this Kings own acknowledgement Thus these three Norman Kings made their way to the Throne the first by armes under colour of title the second by a kind of title under colour of armes and the last by favour but all entered the same by capitulation election and stipulation and for the generall had some regard to suit their course in order of retaining the good will of their people although in a different measure according to the differency of occasions CHAP. XLVI That the government of the Normans proceeded upon the Saxon principles and first of Parliaments THe principles which I mean are these First the legislative power and influence thereof upon the whole Secondly the members of that government with their severall motions Thirdly the laws customs or rules of those motions and first concerning the legislative power Although it be true that the first Williams great and most constant labour was to have and to hold and had but little time or liberty to enjoy yet that time of rest which had he did apply it and himselfe in the setling of the Laws by advice of Common-councell I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility onely as some men take the confidence to averre as if they had been eye-witnesses to the actions of those daies but by the joynt advise of the grand Councell of the Lords and wise men of the Kingdome of England Spicileg p. 5. I will not insist upon force of argument to shew that common reason must of necessity sway the King into this course but shall reserve that to another place the testimonies of Writers must now serve the turn and herein the testimony of the Chronicle of Leichfield must have the first place which speaks both of a Councell of Lords and saith that by their advice he caused to be summoned a meeting of all the Nobles and wise men through all the Counties of England to set downe their laws and customes This was in the fourth yeere of his reigne or rather after his entry and as soon as the Kingdome was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdome according unto Law doth strongly pretend that the Parliament had the legislative power and right of cognisance and judicature in those laws that concerned the Kingdome in generall and for the particular laws or customes of severall places or precincts it was referred to a Committee or Jury in every County to set them forth upon oath Secondly that this Councell had power to change laws may likewise appeare in that act made concerning the introduction of the Canon law Spicil 167. Fox Mart. l. 4. which shewes not onely the power of that Councell in Church-matters but also that the Canon was no further in force then the same would allow and this was also done by the Common councell and the Councell
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
which as some thinke was made advantagiously for the Pope himselfe in point of tenure but more probably in the covenants For the Conquerour was scarce setled in his seat but the Canon law began to speak in the voyce of a Royall law Spicil 167. Fox Mart. l. 4. First complaining of mis-government as if the Church were extreamly wronged by having the same way and law of triall with the Commons of England and then propounds foure severall expedients enough to have undone the whole Common-weale in the very entrance had not the superstition of those times blinded both Parliament and people and rendered them willing with that which their successors in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon law Church matters had the preheminence both in the Hundred and in the County and it was the Bishops duty to joyn with the Sheriff in those Courts to direct and see to the administration of justice and yet the Canon had been above three hundred yeeres foregoing in the negative No case concerning the Regiment of soules shall be brought before the secular Judge The Regiment of soules was a common place sufficient to containe any thing that was in order thereunto and so every one that hath a soule must be no more responsall unto the temporall Judge for any matter concerning it but unto the Ecclesiasticall power and this not onely in case of scandall as against the morall law or rule of faith but for disobedience done to the Canons made afar off concerning any gesture or garbe that may come within the savour of an Ecclesiasticall conceit That all delinquents against the Bishops laws shall answer the fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the triall of such matters shall be according to the law of the Canon and not according to that of the Hundred That is not by Jury but by witnesses in a clandestine way if the Bishop please or without any accuser or by more scrutiny or any other way that may reserve the Lay man to the breast of a prepossessed spirit of the spirituall Judge And thus the poore Countreyman is exposed to the censure of an unknown law in an unknown tongue by an unknown way wherein they had no footing but by an implicite faith And herein the providence of God I imagine was more manifest then the wisdome of man which was too weake to foresee events at so great a distance For questionlesse it was a point of excellent wisdome for the people now under a King of a rugged nature that would not sticke to catch whatsoever he could get to deposite part of their liberties into the hands of the Clergy from whom moderation might be expected as from friends and neighbours and as partners in one ship mutuall engagement to withstand the waves of prerogative of Kings that seldome rests till it breaks all banks and sometimes over-reaches its own guard and cannot return when it would And thus it fell out for many times the Pope and Clergy became protectors of the peoples liberties and kept them safe from the rage of Kings untill the time of restitution should come and became not onely a wall of defence to the one but a rock of offence to the other For the Tripple Crown could never solder with the English nor it with that the strife was for prerogative wherein if the Clergy gained the Crown lost and no moderation would be allowed For the conquering King was scarce warm in his Throne when as the Pope demanded fealty of him for the Crown of England Spicil 164 Baronus Anal. An 1068. and the Kings own good Archbishop and friend Lanfranke delivered the message as also Anselme did afterwards to William Rufus which though Kings had courage enough to deny yet it shewed plainly that the Popes meaned no lesse game then Crown-glieke with the King and people the Archbishops and Bishops holding the Cards for the Pope while in the interim he oversaw all The Norman Kings thus braved payd the Popes in their own Coyne and refused to acknowledge any Pope but such as are first allowed by their concurrance Edmer hist l. 1. p. 25. Thus have we the second bravado of the Canon Law for as yet it was not so fully entered as it seemed The words of the act of Parliament its true were generall yet their sence was left to time to expound and the course of succeeding affaires neverthelesse passed with a non obstante For whereas in those daies the Clergy claimed both legislative and executory power in Church matters the Normans would allow of neither but claimed both as of right belonging to the Imperiall power of this Island originally and onely As touching the legislative power its evident that notwithstanding the Canon that had long before this time voted the Laity from having to doe with Church matters yet the Norman Kings would never allow to the Metropolitans the power of calling Synods nor such meetings Edmer hist p. 6. 24. Spicil 163. but by their leave although it was earnestly contended for Neither could the Clergy prevaile to exclude the Laity out of their Synods being assembled nor from their wonted priviledge of voting therein albeit that for a long time by Canon it had been contradicted The differences between the Clergy and the Kings concerning these and other matters grew so hot that Kings liked not to have any Synods or meetings of publique Councell Epist ad Pascal pap and Archbishop Anselme complained that William Rufus would not allow any to be called for thirteen yeeres together which by the file of story compared with that Epistle made up the kings whole Reigne And this was questionlesse the cause that we finde so little touch upon Parliamentary assemblies in the Norman times Kings being too high to be controlled and Bishops too proud to obey But necessity of State like unto fate prevailes against all other interests whatsoever and the wisdome of Henry the first in this prevailed above that of his predecessors as farre as their will was beyond his For it was bootlesse for him to hold out against the Church that stood in need of all sorts to confirme to him that which common right as then it was taken denied him and therefore though it cost him much trouble with Anselme he recontinued the liberty of publique consultations and yet maintained his dignity and honour seemly well I shall not need to cleare this by particulars for besides the publique consultations at his entrance and twice after that for supply or ayd for his warres and the marriage of his daughter with the Emperour it s observed that the Archbishop of Canterbury
summoned a Councell at Westminster but it was authoritate Regia and that there assembled magnae multitudines Clericorum Laicorum Conten Wigorn. An. 1127. tam divitum quam mediocrium and that upon the third day the debate was de negotiis saecularibus nonnullis The issue of all was that some things were determinata others dilata and other matters propter nimium aestuantis turbae tumultum ab audientia judicantium profligata Out of which may be probably concluded 1. That the Laity as yet were present in Councels with the Clergy 2. That they were all in one place 3. That they all had votes and that the major mumber concluded the matter 4. That certain persons used to determine of the major number by the hearing and that the votes were still clamore non calculis 5. That they held an order in debating of affaires viz. on some daies Ecclesiasticall and on other daies secular 6. That all matters concluded were attested by the King who as t is said did give his consent and by his authority did grant and confirme the same And upon the whole matter it will be probable that as yet Councels and those now called Parliaments differed not in kind although possibly there might be difference of names in regard that some might be immediately and mainly occasioned and urged by Temporall exigences and others by Ecclesiasticall but whether Temporall or Ecclesiasticall the first occasion was yet in their meetings they handled both as occasion offered it selfe Secondly as the Clergy could not attaine the sole legislative power so neither had they the sole juridicall power in Ecclesisticall causes for not onely in case of errour in the Ecclesiasticall courts was an appeale reserved to the Kings court as formerly in the Saxons time but even those things which seemed properly of Ecclesiasticall cognisance were possessed by the Kings Court in the first instance as that of Peter-pence which was a Church-tribute and might be claimed to be proper the Church cognisance much rather then Tythes and yet by the Law of this Kingdome in the Conquerours time it is especially provided Ll. Gulielm c. 20. Spicil 180. that defaults of payment of that duty shall be amended in the Kings Court and a fine for default was given to the King albeit that the Bishop was made the Collector and the Pope the Proprietor And many other particulars which were holden to be of Ecclesiasticall cognisance Kings would draw them within the compasse of maintaining the peace of the Church which properly belonged to them to defend and so had the cognisance of them in their own Courts and fines for invasion of the Church rights But because this may seem but colourable and by way of flattery of the Churches right and not in opposition thereof In other things it will appeare plainly that Kings were not nice in vindicating their own claim in matters which the Clergy held theirs quarto modo as namely in the case of excommunication a weapon first fashioned by the Churchmen and in the exercise whereof themselves were in repute the onely masters and yet in this were mastered by Kings whose Laws directed and restrained the swelling of that censure Eadmer hist p. 6. Ll. H. 1. cap. 5. and made it keepe measure whose Tenants and Officers or servants must not be medled with by this censure but by the Kings leave nor must they be called to answer but in the Kings Court That right still remained to them after the spoile made by the Hierarchy upon the rights of all the rest of the free men and therefore could not of right be called nova in the Historians sence seeing that it was no other then the ancient custome used amongst the Saxons before that the Clergy had either purpose or power to reach at such a height as afterwards by degrees they attained unto Furthermore the Hierarchy as they neither could possesse the legislative nor juridicall power in Church matters so neither could they possesse themselves for as yet they were the Kings men and the more the Kings men because they now thinke a Bishopricke but a naked commodity if not robed with a Barony Neverthelesse before that ever they knew that honour what ever the Canon was for their election yet both their title and power de facto was derived to them from the Kings who also invested them with Staffe and Ring nor had the Pope as yet though he had conquered the Hierarchy possessed himselfe of their colours but during all the Norman times the Kings maintained that trophie of the right they had from their predecessors notwithstanding the many assaults from Rome and treacheries of the Cathedrals within the Realm Eadmer Hist l. 2. p. 53. l. 3. l. 4. Eadmer hist l. 1. l. 5. Wigorn. An. 1128. Spicil 142. and albeit sometimes Kings were too weake to hold the shadow yet the convention of the States did maintaine the substance viz. the right of election without intermission as the examples of Lanfrank unto the See of Canterbury and Anselme and Ralph his successors and of Thomas into the See of Yorke and Ralph coadjutor to Thurstan Archbishop of the same See and of Gilbert into the See of London besides others doe sufficiently set forth whether it was because the convention of states was more stout or that the Bishops now wedded to temporall Baronies were so unquestionably interessed in the publique affairs of the Common-weale that it was against common sence to deny the States their vote and cognisance of their election I cannot determine yet it is a certaine truth the more Baron the lesse Bishop and more unmeet for the service of Rome politiquely therefore it was done by Kings to hold these men by a Golden hooke that otherwise had prostituted themselves to a forraine power and proved absolute desertors of their Countries cause which now they must maintaine under perill of the losse of their own honour In the next place as they were the Kings men so their Bishopricks and Diocesses were under the Kings power to order as by the advise of the Bishops and Baronage should be thought most convenient either to endow an other Bishop with part thereof and so to make two Diocesses of one Eadm l. 4. p. 95. 96. as befell in the case of the Diocesse of Lincolne out of which the Diocesse of Ely budded in the time of Henry the first or to endow a Monastry or other religious foundation with part and exempt the same from all Episcopall or ordinary jurisdiction as in the example of the foundation of the Abby of Battall in Sussex in the time of William the Conquerour may appeare Spicil 65. Lastly what ever the first intention of this recited Statute were it may probably be judged that it was but a noise to still the Clergy and that it never had more then a livelesse shape not onely in regard of the before-mentioned particulars but especially in regard of that subservient
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
in fifteen mannors two Townships with many liberties upon the votes of the Freeholders in a County court and that the sentence was allowed and commended by the King and submitted to by all In the next place we are to come to the Hundred Courts Hundred court of which there are by the Normans allowed two sorts the first whereof was holden twice a yeere This was formerly called the Torne and was the Sheriffs Court hereof little notice is taken Ll. Hen 1. c 8. saving that by the Laws of Henry the first its worke seems to be much designed to the view of free pledges But the more ordinary Court is that which belongs to the Lord of the Hundred unto whom also belong the fines in cases there concerned This Court is to be holden once in each moneth Ll. Gulielm cap. 41. Ll. Hen. 1 c. 7. Ll. Gulielm cap. 41. Ll. Gulielm cap. 42. and no suit to be begun in the Kings Court that regularly ought to begin in the Hund ed. No distringas shall issue forth till three demands made in the Hundred And three distresses shall then issue forth and if upon the fourth the party appeare not execution shall be by sale of the distresse and the complainant shall receive satisfaction But by the latter Laws of the same King there is but two summons allowed and then two distresses Ll. Hen 1. c. 64. and in case no appearance be execution shall be for the complainant and for the Kings fine Ll. Hen. 1. c. 7. Lastly as the case concerned either persons or places sometimes they used to joyn severall Hundreds together into one Court but this was by speciall Commission or Writ As touching inferiour Courts of Tows and Mannors there 's little observation to be had Courts of Towns and Mannors Ll. Hen. 1. c. 7. being of too private a regard to come into fame in those rough times yet in Henry the firsts Laws its ordered that Town courts should meet every moneth and that Lords should hold Plees either in their own persons or by their Stewards and that the chiefe man in that Parish with foure other of the chiefer sort and the Minister or Parish Priest should joyn their assistance in that worke But in nothing more did the Norman Kings shew their paternall love to the Common-weale Decenners then in the law of pledges or Decenners for as of all other beauties it suffered most blemish from the storme of the Norman invasion so was it their especiall care to renew the life thereof not now amongst the natives onely but joyning the Normans to the Saxons in the same bond of brotherhood utterly drowned thereby all memory of Lordly power and so of divers peoples making one conquered even conquest it selfe if any were and made all joynt-partners in one common liberty Ll. Gulielm cap. 64. Ll. Hen. 1. c. 8. Every free man must be under pledges to satisfie justice in case of delinquency Over every nine persons under pledges there must be one man in authority View of free pledges must be to see that the Decennaries be full and if any be departed to enquire the cause and if any be come in whether he be under pledges or not And thus the Norman Kings had their people under treble guard one of fealty the other of association and the third that of pledges and all little enough to secure that which they in their own consciences might have some cause to question whether it belonged to them or not CHAP. XLIX Of the immunities of the Saxon free men under the Norman government THe freedom of an English man consisteth in three particulars First in ownership of what he hath Secondly in voting any Law wherby that ownership is to be maintained and thirdly in having an influence upon that Judicatory power that must apply that Law Now that the English under the Normans enjoyed all this freedome unto each mans own particular besides what they had in bodies aggregate may appeare as followeth The free men of England were such as either joyned in the warre with Harold against the Normans or such as absented themselves from the way of opposition or enmity and were either waiting upon their own affaires or siding with the Normans and questionlesse all the sadnesse of the warre befell the first sort of the English whose persons and estates to make the waies of the first Norman William regular and of one piece never fell so low as to come under the Law or rather the will of conquest but in their worst condition were in truth within the directory of the Law of forfeiture for Treason against their Soveraigne Lord whose claim was by title as hath been already noted The other sort either did appeare to be the Normans friends or for ought appeared so were and so never offending the Law never suffered any penalty but held their persons and possessions still under the patronage of Law as anciently they and their ancestors had done and that this was the Normans meaning they publish the same to the world in a fundamentall Law whereby is granted Ll. Gulielm cap. 55. That all the freemen of the whole Kingdome shall have and hold their Lands and possessions in hereditary right for ever And by this being secured against forfeiture they are further saved from all wrong by the same law which provideth That they shall hold them well or quietly and in peace free from all unjust Tax and from all Tallage so as nothing shall be exacted nor taken but their free service which by right they are bound to performe This is expounded in the Laws of H. 1. cap. 4. that no tribute or tax shall be taken but what was due in the Confessors time Under the word Tax is understood monetagium commune per civitates or comitatus so as aides and escuage are not included for they are not charged upon Counties and Cities but upon Tenures in Knight-service nor was Dane grelt hereby taken away for that was a Tax in the Confessors time and granted by Parliament So then the Norman Kings claimed no other right in the lands and possessons of any of their subjects then under and by the law or common right and they conclude the law with a sicut which I thus English As it is enacted to them or agreed by them and unto them by us given and granted by the Common-councell of our whole Kingdome Statutum est eis illis à nobis datum concessum per commune concilium totius Regni nostri I leave the words to be criticized upon as the Reader shall please being well assured that the most strained sence can reach no further then to make it sound as an estoppell or conclusion to the King and his successors to make any further claim unto the estates of his subjects then by Law or right is warrantable under which notion conquest never did nor can come as shall more fully be manifested hereafter But
Parliament or generall assembly of wise men if the first foundation was not laid thereon Working upon the feast daies punished by fine 4. Commandement Ll. Hen. 1. c. 10 Before this time no daies for solemne worship of God were acknowledged by the law of the Kingdom but the Lords daies By this all daies celebrated or instituted by the Church for that purpose are defended by the civill power and breach of the holy observation of these daies made inquirable and punished amongst other pleas of the Crown 6 Commandement Breach of the peace bloodshed and man slaughter punished by fine This was the ancient Law of the Saxons and was continued without alteration till about Alfreds time whose zeale against blood caused murder to be punished with death but the Danes bringing in a moderation if it may rightly be so called are now seconded by their kindred the Normans who will not admit of punishment by death Ll. Gulielm cap. 67. partly because being a warlike people bloodshed might seem to ranke it selfe under the Regiment of valour and partly because they owed much to that Title for the possession of all that they had gotten in England And to prevent scandall entring upon the reare opinion stept in that a miserable life was more penall then death and therefore in crimes of the deepest die they would to fine and losse of member Ibid. and which course prevailed most either to stop or inlarge the course of that sinne was left to the disposition of such as intended to make triall But in matters of lesse malignancy the purse rather smarted then the body wherein they proceeded so farre as to punishment of death by violence yet was not the fine to be measured by the judgement of the mercy or rigour of any person Miror 254. Ll. Gulielm c. 8 10 12 13 c. but onely of the Law it selfe which set down in certainty both the nature and quantity of the fine and left that memoriall upon record of a good mind at least to an equitable and just government In all these cases of breach of peace the Kings Court becomes possessed of the right of cognisance and the peace is now called the Kings peace not so much because that it is left onely to his providentiall care to maintaine as because the fines Ll. Gulielm cap. 3. for most of those crimes pertained to the King for otherwise there is a sort of crimes that are contra pacem vicecomitis as will be more cleared hereafter I shall conclude this subject with these three observations First that the Laws in those ancient times of the Normans were so generall as they then made no difference between places or persons Ll. Hen. 1. c. 10. but whether the peace was broken upon holy or common ground or upon a Lay-man or one in orders the Lay power seised upon all The second is the care they had for apprehending of the offenders in this kind If the party slaine were a Norman or Frenchman Ll. Gulielm cap. 53. the Lord of the manslaier was charged to have him forthcomming within a certaine time or to pay the Kings fine of 46 Marks so long as he had wherewith to satisfie and what remained the whole Hundred was charged But if the party slain were of any other people Ll. Gulielm cap. 26. the Hundred was immediately charged with the man-slayer and must bring him to answer within a certaine time or pay the Kings fine The third and last is the care they had to prevent breach of peace for the future First in setling of nightwatches by all Cities Burroughs Castles and Hundreds in such manner as the Sheriffe or chiefe Officers by common councell shall advise for the best safety of the Kingdome Ll. Gulielm c. 56. Ll. Gulielm cap. 46. Ll. H. 1. cap. 8. Secondly in forbidding intertainment of unknown persons above three daies without surety for his good abearance or becomming his pledge for the publique safety nor to let any person passe away without testimony under the ministers and neighbours hand of their good carriage A man committing adultery with a married woman shall forfeit to his Lord the price of his life 7. Commandement This made the crime inquirable at the common law as an offence contra pacem Domini Ll. Gulielm cap. 14. but afterward it was finable to the King and inquirable amongst the pleas of the Crown by the law of Henry the first Ll Hen. 1. c. 10. Force upon a woman to the intent to ravish her is fineable but if a Rape be committed Ll. Gul. c. 19. it shall be punished with losse of member The Crimes and offences against this Commandement were alwaies punished in the Temporall Courts by fine at the least and are still in the Normans time prosecuted in the same way notwithstanding the growing authority of the Canon 8. Commandement Robbery is finable The different Law between the Saxons Angles and Danes now by the Normans is setled in the more mercifull way and in case the delinquent made flight the pledge satisfied the law for him Ll. Gulielm cap. 4. Glanv l. 6. c. 6. Hoveden 9 Commandement Ll. Gulielm c. 57. Ll. Hen. 1. c. 10. But in the latter times of Henry the first the law was again reduced to the punishment of this crime by death and so hath continued There shall be true weights and measures throughout the Kingdome and those shal be sealed And this was the constant Saxon Law Perjury to be punished by fine and as formerly still inquirable amongst the Crown pleas CHAP. LI. The like of Lawes that concerne common interest of Goods IF Cattell be taken by distresse the party that will replery them shall pay for the returne of the Cattell Ll. Gulielm cap. 6. and give security to bring the distresse into the Court if within a yeere and a day it be demanded This Law I take to be intended where the Cattell are taken dammage faisant because nothing shall release the distresse in other cases but obedience to the summons No distresse ad comparendum shall be taken but after three severall summons Ll. Guilelm c. 42. and so many defaults made and in such case distresse shall issue by especiall order from the County court I noted this partly to shew the difference of the Normans from the Saxons in the delay of execution of justice by so much mean processe and partly to shew the difference between the Norman times and these daies wherein mens Cattell lie open to the distresse of every oppressing or extorting Bailiffe or unknown person and no summons made at all whereby many poore mens estates are either undone or they must submit to the unjust demands of their adversary No manner of goods of above foure pence in valew shall be bought unlesse in the presence of foure witnesses of the Town Ll Gulielm cap. 43. And the vendor shall satisfie out of his own
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
which if neglected or refused renders the party guilty of treason against his Countrey and his estate under the penalty of forfeiture according to the old Saxon law revived and declared by Henry the first Ll. Hen. 1. c. 13. Thus the law made preparation for the war both of men and Armes Ll. Gulielm 61. Castles and Forts were likewise either first made by the order of the grand Councell or otherwise allowed by them for the defence of the Commons and the Kingdome so was the law of William the first The levying and mannaging of the warre must not be denied de jure to belong to the representative body so farre as may consist with the directory part for that it is a maine part of the government of the Kingdome in times of warre And therefore Henry the first amongst his laws made in the ordinary course of law making provideth for the ordering of men in the army in the field and established a law that such as forsooke their colours or associats in the field during the battell should be punished with death and forfeiture of is whole estate Nor yet can it be denyed but that de facto Kings of their own accord and by secret Councell did direct therein either in the vacancy of Parliament which was the generall case of the first times of the Norman Conquerour and the whole reigne of Willam Rufus or by connivance of the grand Councell while they saw nothing done but what was well done Ll. Hen. 1. c. 13. Nor can it be rationally said that Kings by such advice as they have in the recesse of the grand Councell levying warre in defence of the publique according to rules doe otherwise then their duty or if the grand Councell looke on see nothing misgoverned and say nothing that they doe other then is meet For it must be remembred that Kings in their first originall were rather Officers for warre then peace and so are holden by all Antiquity and as Generals in warre were called Reges or Imperatores by the Grecians Romans and Germans and at such times as warre was concluded at the generall meeting of the people they chose their Dux or Rex call him which you please and he being chosen all bound themselves to be at his command and to defend his person so as while a King keepeth within his place in time of danger it s his duty first to stirre himselfe and stir up the rest to lead them and order them as may be most for the publique defence and to governe the Army by such Lawes as are or shall be established by order of the publique meeting and in case of sudden exigences to use his own wits and in all this is the common liberty no whit infringed in regard that all is for the publique defence to which the Knights are bound by their tenures and all others by the law And this was this Kingdomes case in the Normans time that both Leaders and souldiers whether by election of the people or prescription yet all served for the defence of the Kingdome Nor were they compelable to any other service inconsistent therewith nor to stand to any judgement in such cases differing from or contrary to that of the Parliament it selfe CHAP. LV. That the entry of the Normans into this Island could not be by conquest THat in point of fact the entry of the Normans into England was not by Conquest will suficiently appeare from what hath been already noted I shall make one step further and shew that as affaires then stood with the Conquerour it was impossible for him to merit that name against the stream of providence that had preingaged him to three sorts of men viz. the Normans the Clergy and the Commons of England It must be taken for a ground that Duke Willam must give all faire correspondency to the Normans considering they are members of his own body and the arme of his strength without which he could doe nothing And it s not lesse certaine that however the Sea divided the two Countries yet long before the arrivall of the Army M. West An. 1072. Ll. Gulielm c. 55. the Normans and Saxons were so well acquainted by the latter accesse of the Danes that partly by marriage and other interests the Normans made so great a party in England as that party merited no lesse from the Duke in his enterance then those he brought with him and therefore both they and their allies in all reason must expect such reward of their faithfulnesse to him as the other had nor could the Duke deny the same unlesse he had disclaimed his own interests whereof he had none to spare Secondly their merit from the Duke was accompanied with no lesse mutuall relation to his Army being of the same blood with themselves and of ancient acquaintance and as impossible for the Duke to keep them from consociation with the mixed people as to abstract the mixed people each from other one or both of which must be done and the Conquerours must be kept from incorporating with the conquered or else the law of conquest cannot hold Thirdly if these two had failed yet had the Duke by his manner of rewarding his Army disabled himselfe from holding however he might seem to have by conquest This was his gift of Mannors Lands and Franchises unto his souldiers compleated with their ancient rights and priviledges in free service otherwise it had been little better then a trap to bring his own men into bondage who but lately were free souldiers under no better then a Duke of their own election and their government in their own Countrey however big yet had not yet brought forth a soveraignty into the world their Duke no compleat King nor themselves so mean as vassalls and it was equally difficult for him to get up higher as for them to stoop lower And however it was dangerous now for the Duke to try masteries unlesse he meaned to hazzard all and to change the substance for the shadow Lastly to lay them all aside and to take the Normans as in themselves considered a people under such laws and customes as were the same with the Saxons and originally in them and from them derived into Normandy by Rollo or some other or take them as a people willing to lay aside their own law as some writers affirme and more willing to take up the Danish customes which were also very nigh a kinne to theirs and in part setled by the Danes in that part of the Kingdome where themselves most resided It must be concluded that a government by law was intended and such a law that was no way crosse to the fundamentall laws of this Kingdome but concurring therewith In every of which regards the future generations may justly claime their immunities as successors and heires unto the Normans albeit no Saxon could have enjoyed or derived the same to posterity A second sort of men that made the King uncapable to hold by
conquest was the Clergy a considerable part of the Kingdome in those daies when as in every Nation they grew checkmate and in this Kingdome had well nigh the one halfe of the Knights fees and thereby a principall part of the strength of the Kingdome besides the consciences of them all and for a reserve they had the Pope in the reare whose power in every Kingdome was little inferiour to that of the Kings owne and therefore sufficient to stop an absolute conquest unlesse it were first conquered But the King came in upon great disadvantages in both these regards For whereas his pretence upon his entery was to advance justice principally toward the Clergy who formerly were wronged by Harold or voiced so to be this bound him from injustice and oppression and furthermore the Pope had him in a double bond one as Prince of the English Clergy the other as Judge of the title of the Crown by the Kings own election and that by sentence for the King had merited of him if not to hold the Crown it selfe by fealty to the Roman See yet by such services as that the tripple Crown should be no loser The King therefore must resolve to have no more to doe with the Church then will stand with the Popes liking unlesse he meaned to adventure himselfe and all he had into the danger of the great curse of which the King would seem more sensible then perhaps he was Nor were those times of the Church so moderate as to bring forth Churchmen that would catch the good will of the Laity by condescention or Popes of that height of perfection as to part with one tittle of their great Titles much lesse ought of that pitch of power which they had griped though it would save the world from ruine In all which regards the Norman Duke was too far inferiour to attaine by conquest any thing in this Kingdome wherein the Pope or Clergy claimed ought to have or doe A third sort of people avoided the dint of conquest either by timely siding with the Norman or by constant resisting of him or by neutrality Of the first sort were many Hoveden lib. 6. both Lords and others that by affinity and consanguinity were become Englishmen to the Norman use others were purchased thereunto by the Clergy that were zealous for the Popes honour that was engaged in the worke Ingulsus 512. Of those likewse that were resolute in the defence of the liberty of their Country there were not a few that purchased their liberty who otherwise might under pretence of treachery have forfeited the same to the rapacious humour of the Conquerour and this was not done onely by valour for Normandy stood in a tottering condition with their Duke partly drawn away by the French that feared the Duke would be too strong for them and partly declining their own further ayd least their Duke should be too great for the Dutchy It was therefore wisdome in the Conquerour to settle the English affaires in the fairest way to gaine them for himselfe who had been so brave against him But the greatest number especially of the commons looked on while the game was playing as contented with the cast of the Dice what ever it should be These were afterwards by the King looked upon not as enemies as the president of Edwin of Sharneburne witnesseth sufficiently but upon such as either were or by faire carriage would be made his friends Gloss 227. and therefore he concluded them under a law of assurance that they that had been so peaceable should have and enjoy their Lands as intirely and peaceably as they had formerly done before his entry To conclude therefore this point if these three parties of the English Normans the English Clergy the stout English and the peaceable English be set aside from the title of conquest it will be probable that not one tenth part of the Kingdome were ever under other change then of the Governours owne person CHAP. LVI A briefe survey of the sence of Writers concerning the point of conquest THe clamours in story that the Conquerour altered and made laws at pleasure brought in new customes molested the persons and estates of the people with depopulations extortions and oppressions and others of that nature have made latter times to conclude his government to be as of a Conquerour meerly arbitrary and that he did what he list how different this conclusion is from the intent of those Writers I know not but if the Kings title and government was as a Conquerour then was his will the onely law and can administer no cause of complaint of wrong and oppression and therefore if these be taken in nature of complaints they declare plainly that there was a law in title or else there could have been no transgression or cause to complaine But if the Reader shall apprehend these passages in Writers to be no other then sober relations then were it not amisse to consider from what sort of men these complaints or relations doe proceed viz. from Writers that have been cloystered men little seen in affairs of State more then by common report and rumour prejudiced by the Kings displeasure against their Cloysters and therefore apprehensive of matters in the saddest sence and many times far beyond the truth and might as well be supposed to misrelate as to mistake For if we shall touch upon particulars I thinke no man will deny but the King allowed property indifferently as well to Normans as English if the premisses be rightly considered and therefore though somewhat be true of the plundering of houses of Religion persecuting of the English Nobility deposing of Bishops and Abbots whereof they speake yet all might be deservedly done in a legall way and in execution of justice whereof Histories are not altogether silent Neverthelesse if in the prosecution the King did shew a kind of rage and some rashnesse it might be imputed to the common infirmity of great men for as oppression upon those that are inferiour makes them mad so doth treachery against them that are superiour make them little other especially if they be overtaken with a fit of passion in the instant or their minds wrapped into a whirlpoole of affaires But the change of laws makes the greater noise wherein what change they suffered may appeare from the premisses if Writers have delt uprightly Otherwise generall imputations without particular instances will never sway opinion contrary to the currant of the laws that are published especially seeing we have observed the errour of the best Historian of those times in calling those things new which were anciently used in England before Normandy was in a condition of a state Yet if this should be granted and that there were such change of laws as is pretended it makes nothing to the point of conquest so long as the new laws are made by advice of common Councell and for the common good and so long as they are established to be
rules for government I remember it s affirmed by some of those ancient Writers that the Duke or King would have brought in the customes of Norwey but the earnest mediation of the English prevailed against it and it evinceth two things to my opinion first that there was question made what law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdome they could not prevaile to bring in the whole body of their law or of the customes of Norwey which were not onely the prima materia of their law but also in kind had a setling at that very time in those places of this Kingdome where the Danes had their principall seate and therefore not altogether strange to the Saxons themselves The summe of which will be this that upon debate a law must be setled and that not the law of the Conquerours own will nor the law that suits with his desire but the ancient law of the Kingdome and therefore if at any time the unquietnesse of some of the English brought the King to some thoughts of arbitrary rule and to shake off the clog of Saxon law it was long ere it stirred and sprang up too late to raise the title of conquest and withered too soon to settle it As touching the change of customes for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour tooke away the custome of Gavell kinde and brought the custome of discent to the eldest sonne and that Kent saved their liberties and continued this custome of Gavell kinde I shall not contend about the liberties of Kent but must till I see better reason hold the opinion of the change of inheritance to be a meere conceit For besides what hath been already said concerning that custome of Gavell kind if we believe Glanvile the difference was between Lands holden by Knights service Lib. 7. cap. 3. and in socage the first of which in his time by ancient custome alwaies descended to the eldest and those Lands that were holden in Socage if not partible by custome in which case they went equally to all the sonnes went by custome in some places to the eldest in other places to the youngest so as the rule of inheritance in the Norman times was custome as well as in former times And furthermore if the custome of Gavell kind had been the generall custome of this Nation the King by his change had contradicted his own Prerogative and granted as great a liberty to his subjects as could have been invented For had the custome of Gavell kind happened upon the Lands in Knight service it had brought all the sonnes under the law of Wardship and had made a ready way to inthrall all men of worth and undoe all husbandry the first whereof had been as advantagious to the Kings private interest as both destructive to the publique Nor is it cleare from any Authour of credit that the Normans changed the tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what tenure he pleased for as well before the Normans time as long after tenures were like as the services were all at the will of the donor and were of as many individuals almost as the minds of the owners some being of more generall regard and publique use Littlet are recorded amongst the grounds of English laws none of which appeare to me to be of Norman originall although they received their names according to that dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute tyrant and to publish laws in a forreigne language that the people through ignorance might the rather transgresse and thereby forfeit their estates This if true so far differed from the nature of a Conquerour as rather proveth that he was put to his shifts Neverthelesse the thing tasteth so much of spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conquerour to entitle himselfe by a cheat where he hath an elder title by conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continuall view of publique affaires in those times who speaking of the Conquerour saith That he commended the Confessors laws to his Justices in the same Language wherein they were wonted formerly to be written Ingulfus lest through ignorance the people might rashly offend And another Authour saith M. Paris fragm Gulielm that the King had a desire to learn the English tongue that he might the better know their Law and judge according thereto It s probable neverthelesse that the laws were in the Norman tongue and it s no lesse likely that the pleadings in reall actions especially were also in the same Language else must the Normans be put to schoole to learne English upon perill of losse of their estates but that either the written laws were wholy concluded into the Norman Tongue or that the publique pleading of causes by word of mouth in all actions where the issue was left to the Countrey were in any other Language then English no advised Reader will conceive seeing it had been a madnesse for an English Jury to passe their verdict in any case wherein its likely many of them understood scarce a syllable of the Norman language much lesse ought of the matter upon which their verdict should be grounded Adde hereunto that it s not likely but the Conquerour inhibited the use of the English language in all matters of publique Record in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon more generally in the Latine but seldome or never in the Norman dialect and that pleadings and indictments were entered in like manner in the Latine Tongue as formerly by an old custome brought in by the Clergy was used for the Clergy who had gotten the Key of knowledge and Law into their own custody layd it up in that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for justice as well as for piety The Normans therefore either found it too hard to alter the former custome in such cases or else thought it the wisest way to choose the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any forreine Tongue besides and yet endeavoured to bring both peoples into one Language as they were intended to be one people and to presse the use of the Norman Tongue in publique affaires so farre as might consist with good government and justice leaving
time and occasion to worke the issue which doubtlesse was much and had been more had the Norman race continued in the Throne But falling out otherwise the English blood prevailed in the head and the Language continued possession mixed onely with some Norman words as the people were also a mixed people So as the Language was changed though it was altered Lastly it s affirmed that the Normans did impose a new custome called Coverfeu and its thought by some to be a meere vassalage that every man at the noise of the Bell every night must put out both fire and Candle and yet is a matter of so small concernment that of being in its own nature convenient Scotland received it without such coercion and can be reputed for no other then a seasonable advice which any Corporation in time of danger might order within their own Precinct without transgressing the liberty of the subjects Of lesse consequence is that change which is alledged was brought in by the Normans in the sealing of Deeds of conveyance by seting a print upon Wax annexed to the Deed which formerly was wont to be by setting a print upon the blanke at the end of the Deed and yet it s looked upon by some as a trophee of conquest or absolute government concerning which I will not dispute whether the Normans first brought in this course but shall rest in this that the King being about to compleat the unity of the Laws in the superstructure as well as in the fundamentals if herein and in some other particulars the English submitted to the Normans they likewise stooped to the English Law in other things and therefore such concurrences ought not to be imputed unto a conquering power but unto moderation amongst a company of wise men Thus having glanced at the changes of Property Lawes Tenures Language and some customes we come to that which is the maine occasion of all these complaints I meane unlawful Taxes afforstinges and other such oppressions upon the estates of the people concerning which I purpose not to contend for much thereof is like to be true the Norman Kings especially the two Williams being under continuall occasion of expence many warres more provocations which kept them ever in action and that wrought their spirits into an immoderate heat little inferiour unto rage and so they might soon outreach their bounds and sit heavy on the people and in such occasions no man escaped Norman nor English Clergyman nor Layman nor did the Kings themselves come off such gainers but that they might sometimes put up their gettings into their own eyes and see never a whit the worse And yet to doe them right they were not alwaies of such sad influence but had their lucida intervalla especially he that had the least cause I mean the Conquerour who certainly was a man of a serious regard and did not onely remit sometimes his rigour in exacting where he ought not but also forbare to require that which he had some colour to demand for whereas the Daneguelt was left unto him in the nature of an annuity he was contented to turne it into a summe in grosse and to demand it onely Cum ab exteris gentibus bella vel opiniones bellorum insurgebant Hoveden and it was then done consultis magnatibus These things thus considered might have mollified somewhat the Pennes of angry Writers and where they faile may be caution to Readers to consider occasions and dispositions of Princes and so long as Laws hold in title to construe the irregularities of Princes to be but as steps out of the path to avoyd a little dirt that a man may get home the more cleanly and therefore rightly can derive no other title of absolute soveraignty to their successors then to hold by infirmity And thus the Government under the Normans at the worst was but like that of childhood following sudden and present desires not wise enough to plot for absolute Monarchy nor to keepe off a polity which still rooted underneath though the fruit while it was now green was harsh and unpleasant I shall conclude this Norman discourse with this advertisment that notwithstanding the words Conquerour and Conquest have often faln from my Pen and hereafter may doe the like yet can I see no reason why divers succeeding Kings comming to the Crown by argument of the Sword and not by right of descent may not deserve the Laurell as well as the first Norman King onely because fame hath fancied him that Title under a kind of prescription I do the like CHAP. LVII Of the Government during the Reignes of Steven Henry the 2. Richard the 1. and John And first of their Titles to the Crown and disposition in government I Have cut out this portion of one hundred twenty and five yeeres containing the reignes of these Kings apart from their successors in regard of their titles all of them being under one generall climate and breathing one ayre of election and compact between them and the people Now was the issue male of the stocke of Normandy quite wasted I meane in relation to succession by inheritance for although it was the lot of Henry the first to have many children yet it was not his happinesse to have many lineal nor to hold what he had nor of them all was there left above one that might pretend to the Crown and it a daughter who was the great Grandmother to all the succeeding Kings till this day Onely King Steven Steven like an unruly ghost comming in upon the Stage troubled the play during his time This daughter of Henry the first was married to the Emperour Henry the fourth and surviving him was in her fathers life time acknowledged to be his heire the Sea having formerly swallowed up the remainder of his hope unto her the Lords sware fealty as to the next successor in the Throne after the decease of her father being led thereto by the instigation of her father whose conscience told him that the Title to the Crown by inheritance was weakned by his own president himselfe comming to the same by election of the people contrary to the title of his brother Robert Neverthelesse this was not the first time that the English Crown refused to be worne by practice for Henry the first being dead Steven the younger sonne to a younger sister of Henry the first put up head who being of the Royall stemme a man and a brave Souldier by the ancient course of the Saxons had title enough to be thought upon in a doubtfull succession Besides he was a rich man and had enough to raise up his thoughts to high undertakings and a Brother a Bishop and Legate to the Pops here in England one who was of a high spirit and vast power advantages enough to have quickned a much duller spirit then his was who was the sonne of a daughter to William the Conquerour and to make him yet more bold he had the upper
the Conquest and during the reigne of these severall Kings UNder the title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdome and learning and advancement into place of government and honour These were in the Saxons times the flower of the people flourishing onely from the honour that ascended from beneath their deportment then was full of cheere and safety to the people after that royalty sprung up the influence thereof upon them exhaled such a reciprocall interest backe againe as made them lesse regardfull of their own roote Whereas we see the more mature flowers are the more propence to turne head and looke downward to their own originall This distemper was yet much worse by the comming in of the Normans whose Nobility besides their titles of honour in their own Country obtained by custome such command and power amongst the meaner sort being souldiers under them in time of the service in the field that when the warres had breathed out their last neither of them could forget or were very carefull to lay aside This was observed by Kings and advantage espied to clime to the top of Monarchy by the helpe of these great men whom if they could make their own all would be theirs and wherein they had prevailed much more then they did if they had been wise enough to have maintained them in unity but in that failing Kings were necessitated to take parties and serve the Nobility to save the maine and thus continued they a considerable party in the gouernment of this kingdome from the Normans for the space of two hundred yeeres well nigh to the prejudice both of the growth of the prerogative of Kings and liberties of the Commons and benefit of none but the Lords who in those unquiet times were the chiefe Commanders in the field This errour of Kings was soon espied but could not be avoyded its naturall to man to be proud and to such to fall into contention another course therefore is taken viz. to raise up some so high as may overtop all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must beare their power where they cannot be personally present yet it is dangerous to bestow too much upon one man for there is no man fitting to be a King but himselfe that is a King and where kings are immoderate in bestowing power it many times workes much woe to the people and not seldome sorrow to the Kings themselves The place of the chiefe Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-generall throughout the kingdome A power and worke too great for any one man in the world that can make no deputies to mannage it Hoveden 443 375. Nubr lib. 4. cap. 14. and yet in those times you shall meet with one man made up of an Archbishop a Legate and chiefe Justice of England or a Bishop a Lord Chancellor a Legate and chiefe Justice of England and a strange kind of government must that needs be wherein the servants Throne is above his masters and a subject shall have a plenitudinary power beyond that which his Lord and King was as the times then were was capable of By these and such like pluralities the great men of England kept the Commons below and themselves above and probably rendred the temper of the government of this kingdome more Aristocraticall then in after ages And if their personall authority was of such value how much rather in their joynt assembly or court of Councell concerning which I must agree that as in their originall in Germany they did consult and determine of the meaner matters that is to say of matters concerning property and therefore were in their most ordinary worke meetings of Judges or Courts of Judicature and also matters of defensive warre because themselves were the Commanders and lastly in matters of sudden concernment to the State not onely to serve as eyes to foresee but to provide also if they can or otherwise to call in the ayd of the peoples advice so also they continued this course and it may be now and then as all Councels have done strained their endeavours beyond their reach especally since the Normans entrance and therefore I shall not deny but that they alone with the King and without the Commons have made many Laws and Constitutions some of which now are called Statutes although many of them in truth are no other then rules for Judicature which ordinary Courts may frame or Judgements in particular cases such as are the constitutions at Clarindon in Henry the seconds time and many other Laws which are reported to be made between the King and his Lords Nor can I looke upon such laws otherwise then as upon judgements in Courts of Justice in new points of controversie grounded upon ancient grounds which properly are not new Laws but the ancient rule applied to new particulars and being so published to the world may beare the name of Laws Ordinances Constitutions or Judgements the word Statute being of later times taken up and used in a more restrictive sence of which more in their due place Now that this Court was a setled Court of judicature Hoveden An. 1175. and so used may appeare in that fines were leavied therein and Writs of right determined as in that great case between the two Kings of Navarr and Castile Ibid. referred to the judgement of Henry the second and tried in this Court it s said that the triall was by plea and if need wereby battell The Judges in this Court were the Baronage of England for the entry of judgement in that great case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. so as though doubtlesse many were absent some being enemies others discontented others upon other occasions yet all might claime their votes as Barons The President over all the rest was the chiefe Justice or if the King were present then himselfe and by him was the sentence or judgement declared according to the entry in the case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councels which weakned the esteem of conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle and by this means the necessity of calling together the whole body representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its juridicall power to the three Courts at Westminster viz. the Kings bench Common pleas and Exchequer saving still the supreame judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free
in the Lawes cap. 2. Rights of Tythes of a Lay fee or where the tenure is in question belong to the Kings court Pleas of debts by troth-plight belong to the Kings Court. cap. 3. These were Saxon Laws and do intimate that it was the indeavour of the Clergy to get the sole cognisance of Tythes because they were originally their dues and of the debts by troth-plight because that oaths seemed to relate much to Religion whereof they held themselves the onely professors The Kings Justice shall reforme errourrs of Ecclesiasticall Courts and Crimes of Ecclesiasticall person cap. 4. Appeales shall be from Archdeacons Courts to the Bishops Courts and thence to the Archbishops courts cap. 5. and thence to the Kings court and there the sentence to be finall No man that ever was acquainted with antiquity will question that these were received Laws in the Saxons time Constit at Clarindon nor did the Clergy ever quarrell them till the Normans taught them by curtesie done to Rome to expect more from Kings then for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergy for his Crowne and could not otherwise content them parted with this Jewel of supreame power in causes Ecclesiasticall to the Roman cognisance as hath been already noted but Henry the second would none of this cheate at so easie a rate This strooke so smart a blow as though the Popedome had but newly recovered out of a paralitique Schisme yet seeing it so mainly concerned the maintenance of the tripple Crown Alexander the Pope having lately been blooded against a brave Emperour made the lesse difficulty to stickle with a valiant King who in conclusion was fain to yeeld up the bucklers and let the Pope hold what he had gotten notwithstanding against this law and all former Law and custome And thus the Popes supremacy in spirituall causes is secured both by a recovery and judgement by confession thereupon Constit at Clarindon The King shall have vacances of Churches cap. 6. and power to elect by his secret Councell The party elected shall doe homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custome not altogether against reason although not suitable to opinion of many yet we meet two alterations of the ancient custome First that the election shall be by the King and secret Councell whereas formerly the election of Bishops and Archbishops was of such publique concernment as the Parliament tooke cognisance thereof and that which was worse a Councell was hereby allowed called a secret Councell which in effect is a Councell to serve the Kings private aimes and unto this Councell power given in the ordering of the publique affaires without advice of the publique Councell of Lords which was the onely Councell of state in former times and thus the publique affaires are made to correspond with the Kings private interest which hath been the cause of much irregularity in the government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unlesse by practise in Stevens time when as there was little regard of the one or the other Nor doth it concurre with the file of story that it should be inserted within these constitutions Constit at Clarindon seeing that writers agree it was the chiefe cause of quarrell between him and Becket who refused submission without the clause and at which the King stooke with the Archbishop for the space of seven yeeres which was six yeeres after the Constitutions were consented unto and concluded upon cap. 7. No Clergy man or other may depart the Realm without the Kings licence It s a law of Nations and must be agreed on all hands that no reason of state can allow dispensations therein especially in a doubtfull government where the Supremacy is in dispute and this the wilfull Archbishop never questioned till he questioned all authority but in order to his own for but the yeere before when he went to Turonn to the generall Councell upon summons M. Paris he first obtained licence from the King before he went No sentence of excommunication or interdiction to passe against the Kings tenant or any minister of state cap. 8. without licence first had of the King or his chiefe Iustice in the Kings absence Till the Conquest no Excommunication passed without warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons Constit at Clarindon and the Clergy having gotten the upper hand in Councels made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon vid. cap. onely as well the Normans as untill these times Kings have saved their owne associates from that sudden blow and upon reason of religious observance least the King should converse with excommunicate persons ere he be aware The Laity are not to be proceeded against in Ecclesiasticall Courts cap. 9. but upon proofe by witnesses in the presence of the Bishop and where no witnesses are the Sheriffe shall try the matter by Iury in the presence of the Bishop A negative law that implieth another course was used upon light fame or suspition ex officio although the oath at that time was not borne into the world and that all this was contrary to the liberty of the Subject and law of the Land and it intimates a ground of prohibition in all such cases upon the common law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath cap. 10. or baile to stand to the judgement of the Church Upon the taking and imprisoning of the party excommunicate Constit at Clarindon the course anciently was it seemeth to give pledge to stand to order of this the Bishops were weary soon as it seemeth and therefore waved it and betooke themselves to other inventions of their own viz. to bind them by oath or baile both which were contrary to law for no oath was to be administred but by law of the kingdome nor did it belong to the Ecclesiasticall laws to order oathes or baile and therefore this law became a ground of prohibition in such cases and of the Writ de cautione admittenda cap. 11. Persons cited and making default may be interdicted and the Kings Officer shall compell him to obey If the Kings Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the processe in the Spirituall Courts was to be regulated according to Law nor did it lie in the power of such Courts to order their own way or to scatter the censure of excommunication according to their own liking This together with all those that foregoe the Archbishop upon his repentance absolutely
withstood all though he had twice consented and once subscribed to them Constit at Clarindon having also received some kind of allowance thereof even from Rome it selfe cap. 12. Clergy men holding per Baroniam shall doe such services as to their tenure belong and shall assist in the Kings Court till judgement of life or member Two things are hereby manifest First that notwithstanding the Conquerours law formerly mentioned Bishops still sate as Judges in the Kings courts as they had done in the Saxon times but it was upon causes that meerly concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spirituall Courts and not the Clergy out of the Lay courts Secondly that the Clergy especially those of the greater sort questioned their services due by tenure as if they intended neither Lord nor King but the Pope onely Doubtlesse the use of tenures in those times was of infinite consequence to the peace of the kingdome and government of these Kings when as by these principally not onely all degrees were untied and made dependant from the Lord paramont to the Tenant peravale but especially the Clergy with the Laity upon the Crown without which a strange metamorphosis in government must needs have ensued beyond the shape of any reasonable conceit the one halfe almost of the people in England being absolutely put under the dominion of a forraine power Sanctuary shall not protect forfeited goods cap. 13 14. nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened with out Licence Constit at Clarindon cap. 15. It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without licence or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Churchmen to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into Monastery without the Lords consent cap. 16. Upon the same ground with the former for the Lord had not only right in his tenant which could not be aliened without his consent but also a right in his tenants children in regard they in time might by descent become his tenants so lie under the same ground of law for although this be no alienation by legall purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affaires These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last but their Captaine Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Samson like effected more then his life for the maine thing of all the rest the Pope gained to be friends for the losse of so great a stickler in the Church affaires as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishop espied a muse through which all the game of the Popedome might soon escape and the Pope be left to sit upon thornes in regard of his authority here in England For let the Metropolitane of all England be a sworne servant to the Metropolitane of the Christian world and the rest of the English Bishops not concur it will make the tripple Crown at the best but double Antiq. Brit. 302. F xe An. 1179. Alexander the Pope therefore meaned not to trust their faire natures any longer but puts an oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceale their counsels 4. To ayd the Roman papacy against all persons 5. To assist the Roman Legate 6. To come to Synods upon Summons 7. To visit Rome once every three yeeres 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their estates bodies and soules unto her service that which remaines the King of England may keepe And well it was that it was not worse M. Paris An. 1167. considering that the King had vowed perpetuall enmity against the Pope but he wisely perceiving that the Kings spirit would up againe having thus gotten the maine battell durst not adventure upon the Kings reare least he might turn head and so he let the King come off with the losse of appeales Baronus Anal. 1164. Sec. 11. and an order to annull the customes that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to loose to the scarcrow power of Rome yet it befell him as many great spirits that favour prevailes more with them then feare or power for being towards his last times worne with griefe at his unnaturall sonnes a shaddow of the kindnesse of the Popes Legate unto him wonne that which the Clergy could never formerly wrest from him in these particulars granted by him M. Paris An. 1176. That No Clerke shall answer in the Lay courts but onely for the forest and their Lay fee. This savoured more of curtesie then justice and therefore we finde not that the same did thrive nor did continue long in force as a Law although the claime thereof lasted Vacances shall not be holden in the Kings hand above one yeare unlesse upon case of necessity This seemeth to passe somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the Kings Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a hundred murders To prevent this evill the King loth to enter the List with the Clergy about too many matters let loose the law of feude for the friends of the party slaine to take revenge and this cost the blood of many Clerkes the Laity happly being more industrious therein then otherwise they would have been because the Ecclesiasticall Judge for the most part favoured them As an expedient to all which this Law was made and so the Clergy was still left to their Clergy and justice done upon such as sought their blood Clergy men shall not be holden to triall by battaile It was an ancient Law of the Saxons and either
by neglect worne out of use or by the valour of the Clergy laid aside as resolving rather to adventure their own blood then to end their quarrell before the Lay Judge by plea but grown weary of that course and likely also put hard to the pinch upon complaints made by them against Clerkslayers they are faine to have recourse to their ancient priviledge Hitherto therefore its manifest the Clergy were in their growing condition notwithstanding the policy and power of Henry the second who was the paragon of that age After him reigned Richard the first that must expiate his disobedience to his father by obedience to his ghostly father the Pope in undertaking the holy warre and being gone left the government in his absence so deeply intrusted to the Clergy as they could loose nothing of what they had gained unlesse they would and might have gained much more then they did or should had not the Bishop that was the overseer of the whole Kingdom being drunken with vanity and spued out his own shame However the successe was it was not contrary to the principles of those times for Richard had experience in the Emperor Frederick and his fathers example that the Pope Clergy were too hard for all the Potentates in Europe and therefore might most safely trust them with all he had at home whiles he was in their service abroad Nor were they short of what was intrusted to them but stook close for the maintenance of his right to the Crown and emptied themselves even to the very consecrated Vessels and procured the Laity of all sorts to doe the like to save the Kingdome from the rape of strangers and usurpers who esteemed the King dead in Law and as one buried alive Thus passed they to King John the government supposing themselves well enough assured of what they had gotten by their severall atchievements had under the reignes of three severall Kings successively and King John might well enough have understood the times if he had seriously considered them but being heigthned all his life time with lawlesse government wherein he was trained up in Ireland he knew not how to stoop till he stooped so low as the Legates knee and his Crown at the Popes foot leaving an example to posterity to beware of striving with the Clergy If then these sparks of ambition were so virulent being alone certainly in their joynt consultations much more They had long striven now since the conquest to have excluded the Laity from their Synods and about these daies effected it and yet about Henry the seconds time it may be supposed the thing either was not yet done or so lately that the Law was not cleare in that point for Petrus Blecensis who was Archdeacon of Bath about those times in his Epistle to the Archbishop of Yorke concerning the restraint of the growing sect of the Publicans he adviseth in these words Accipite clerum congregate populum ex eorum communi deliberatione qui spiritum Domini habent terribilis constitutio promulgetur c. and if the Historian doth not mistake the proceedings against that sect being onely for errours in Religion was in a Councell of Bishops and Lords Neverthelesse whether present or absent the Laity sate there as cyphers making the number great but not valuable by themselves For even in the Norman times they were brought so low as the constitution made by the Clergy wrought more upon them then civility it selfe can work upon professours of Religion in these daies M. West An. 1127. For it seems excesse of long haire was grown to that measure that the Synod cried out against it and decreed that men should cut their haire so as their eyes and laps of their eares might be seen and the King himselfe I mean Henry the first submitted to this cut and made all his Knights to doe the like and exposed themselves to the then odious by-names of clowns or Priests like to the round heads of these daies who formerly marched under the titles of criniti or Ruffians This did but touch the haire but they went to the quicke when they decreed that Lords should not sell their villains and that outlaries should passe in certain particular cases as in the constitutions of Archbishop Anselme may appeare Afterwards in these Kings times they flew at the throat of the government got all places of honour or profit or power whether for peace or warre under their gripe Antiq. Brit. 150. ibid 155. deposed and advanced as they pleased even to the Royall Thron it selfe and that not onely out of a sudden passion of State but advisedly concluded it for a maxime that the election of the King belonged to them as in the case of the election of Maude the Empresse they did hold forth to all the world Ibid. 127. and in which the King also then flattered them as holding their election so necessary that he kept the whole Synod in duresse to have their votes for the election of his sonne to be his successor CHAP. LX. Of the English Commonalty since the Normans time THe dignity of the English Crown thus deflowred by the great men was no losse to the common people for as in all decays of Monarchy the great men get nothing if they please not the people so the King can hold nothing if they be not contented And yet contented or not contented they could not gain much for as affaires then stood in the Christian world the Polititians discourse of three kinds of government proved idle neither could Monarchy Aristocracy nor Democracy attaine any semblable condition in any place so long as the Church held its designe apart prevailed to have the greatest share in all not now by the favour either of great or small but by a pretended divine right through which they now had gotten to their full pitch of Lordship in the consciences of men It must be acknowledged that this was a distemper in government yet such it was as kept humours low and restrained the inordinate excesses that in all kinds of government are subject to break forth so as neither King nor Lords nor people could swell into larger proportion then would suit with the ends of the Churchmen But to mind the matter in hand somewhat the Commons gained in these stormy times The taxes that they were charged with were rather perswaded then imposed upon them and generally they were sparing in that worke and it s noted for the honour of King Steven that though he was seldome without warre yet he not onely never charged the people with any tax but released that of Daneguelt and acquitted the subject for ever of that tax which former Kings challenged as their right all which shew him to be a brave King if he was not a very rich man Henry the second was more heavy because he had more to doe yet finde we but one assessment which was escuage unlesse for the holy warre which was more
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
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
had entered into him and animated him in all his waies He brought in with him the first president of conscience in poynt of succession by inheritance in the English Throne for the streame of probabilities was against him He was a child and the times required a compleat man and a man for warre He was the child of King Iohn whose demerits of the State were now fresh in the minds of all men He was also designed to the Throne by his fathers last Will M. Paris An. 1216. which was a dangerous president for them to admit who had but even now withstood King Iohns depositing of the Crown in the Popes hands as not being in the power of a King of England to dispose of his Crown according to his own will Yet leaping over all these considerations and looking on Henry the third as the child of a King that by good nouriture might prove a wise and just King they closed about this sparke in hope it might bring forth a flame whereby to warme themselves in stormy times Nor did their hopes soon perish for during his minority the King was wise to follow good councell and by it purged out all the ill humours that the kingdome had contracted in the rash distempers of his fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those councels that suted with the most populer way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware M. Paris An. 1223. And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meere servant and its hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to governe a King should be much more worthy to governe themselves But the Pope put an end to all occasion of question hereabout for by his briefe he declares the King to be sixteen yeeres old and of age to govern himselfe and therefore all Castles are forthwith to be rendred up into the Kings hands M. Paris An. 1223 1224. This proved the rock of offence whiles some obeyed the Pope and were impugners of those that put more confidence in the Castles then in the Kings good nature Hence first sprang a civill broyle thence want of money then a Parliament wherein the grand charter of Englands liberties once more was exchanged for a summe of money Thus God wheeled about successes But the King having passed over his tame age under the government of wise Councellors and by this time beginning to feele liberty it was his hard condition to meet with want of money and worse to meet with ill Councellors which served him with ill advice that the grand Charter would keepe him down make him continually poore and in state of pupilage to this giving credit it shaped an Idea in his mind that would never out for forty yeeres after and thus advised he neglects his own engagement defies the government that by his Royall word and the Kings his predecessors in coole blood had been setled and that he might doe this without check of conscience he forbad the study of the law that so it might die without heire and he have all by Escheat This sadded the English and made them drive heavily the King to adde more strength brought in forrainers and forraine Councels and then all was at a stand The Councels were for new waies The great designe was to get money to supply the Kings wants and as great a designe was to keepe the King in want otherwise it had been easie for those at the helme to have stopped the concourse of forrainers other then themselves from abroad the confluence of the Queenes poorer alies lavish entertainment profuse rewards cheates from Rome and all in necessitous times But strangers to maintaine their own interests must maintaine strangenesse between the King and his subjects to supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a traine of oppressions depending thereon fines and amercements corrupt advancements loanes and many tricks to make rich men offenders especially projects upon the City of London Neverthelesse all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the great Charter and many promises passe from the King to that end and after that oathes and yet no performance this makes the people absolutely deny supplies Then the King pretends warres in France warres in Scotland and wars against the Infidels in the Holyland whither he is going the people upon such grounds give him ayds but finding all but pretences or ill successe of such enterprises they are hardned against supplies of him for the holy warre then he seems penitent and poures out new promises sealed with the most solemne execration that is to be found in the wombe of story and so punctually recorded as if God would have all generations to remember it as the seale of the covenant between the King of England and his people and therefore I cannot omit it M. Paris An. 1253. It was done in full Parliament where the Lords Temporall and Spirituall Knights and others of the Clergy all standing with their Tapers burning The King himselfe also standing with a cheerly countenance holding his open hand upon his brest the Archbishop pronounced this curse ensuing By the authority of God omnipotent of the Sonne and of the holy Ghost and of the glorious mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the holy Martyr and Archbishop Thomas and of all the Martys and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God We Excommunicate and Anathematize and sequester from our holy mother the Church all those which henceforth knowingly and maliciously shall deprive or spoile Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or councell by crossing in part or whole those Ecclesiasticall liberties or ancient approved customes of the Kingdome especially the liberties and free customes which are contained in the Charters of the common liberties of England and the Forrests granted by our Lord the King to the Archbishops Bishops Prelates Earles Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customes or being brought in have observed and all writers of
it were in so many words let the King know that all England is now tame and like to be ridden at his discretion And now there 's nothing in his way but the fatall execration which he feared not in relation to Gods anger but rather to the exasperated Clergy and the dread of the Popes direfull thunderbolt To avoyd this storm he procures a dispensation from Rome to perjure and oppresse without sinne A tricke that he learned of his father and hid it within his breast till now about two yeeres before his end he brings it forth to tell all the world that hitherto he had been just against his will But having obtained his purpose he neverthelesse misseth of his end for a new King of Scots our old good enemies by divine providence suddenly crossed his way before him and now it boots not to contend for arbitrary rule in England and lose the Crown of Scotland which he once thought he had sure he faces about therefore and having spoken faire to his people for Scotland he goes Thus if all were not in a parenthesis the King intended a good period but God onely knowes what his furthest reach would have been if he had returned for he was taken out of this world in Scotland and so left this his government somewhat like an imperfect sentence Edw. 2. His sonne Edward should have compleated it but that he wanted his fathers sence and had too much of his grandfathers superbient humour that meeting with a stiffe spirit and a weak mind brought sudden fire into the course of government till it consumed it selfe in its own flame For this King having newly slipt out of a bondage of wise government under his father ranne the wilde chase after rash desires spending his former time in inordinate love and his later time upon revengefull anger little inferiour to rage and so in his whole government was scarce his own man His love was a president of a strange nature that commanded him from all the contentments of his Kingdome to serve one man a stranger and prostitute to all manner of licentiousnesse meerely for some personall endowments It shews that his judgement was weak and his affections strong and in that more weake because he discovered it before he was crowned like some of the weakest of the weaker sex the birth of whose minds are borne as soon as they are conceived and speake as soon as they are borne It s true that bravery of Spirit may worke after absolutenesse in Kings under the colour of some kind of wisdome But it is one thing to rule without law and another to live without rule the one dashes against the law of an English King and may put on the name of policy but the other destroyes the law of mankind and can beare no better name then of brutish desire All the while Gaveston was in view we finde nothing concerning common weale or monument of Parliament saving two Ordinances made by the King and such Lords as suted to the Kings way rather then to his wants 1. Edw. 2. The first was that de militibus the other de frangentibus prisonam for all the Kings labour was to royallize Gaveston into as high a pitch as he could and so to amaze his own eye sight with contemplating the goodlinesse of his person So as Gaveston is become the image of the King and presents his beames and influence into all parts of the Kingdom and according to his aspect they often change and waine yet at the best were but as in a misty night The Barons liked not this condition of state Idolatry they were willing to adore the King but they could not bow to an image they desired nothing more then that their King might shine in his proper glory Thrice is Gaveston banished thrice he returnes the last occasioned another civill warre wherein Gaveston lost his head thus the Lords removed the eclipse but little the better thereby they finde it a vaine labour to compell the Sunne to shine by force when it hath no light Though Gaveston be gone the mist of forraine councels prevaile this was bred in the blood fed with blood and ended in blood Through the glasse of forraine Councels all things seem of forraine colour the King to the people and the people to him The King at length begins to see himselfe undervalued and that it began in himselfe ventures himselfe into the warres with Scotland to win honour goes with much splendour but returns with the greatest blot that ever English King suffered confounded abroad and sleighted at home For the bravest men by ill successe are lost in common opinion or to speake in a higher strain where God doth not blesse man will not The King thus almost annihilated catches hold of Rome fawnes on the Clergy passes to them the Ordinances of Articuli Cleri and de prisis bonis cleri which lost the free men no right although it concluded the Crown And to caresse the Commons made the Statute de vice-committibus and the City of London likewise by the statute de Gavelletto But God saw all sorts of men runne at riot and sends in upon the Nation plague famine and other extraordinary testimonies of his displeasure even to the wonderment of other Nations and this brought a kinde of sobriety into affaires made all sorts tame and for the present onely prepared them for better times For the Kings time of longing againe is come and he must have new playfellows findes the Spencers or rather was found of them they grow in honour almost beyond the reach of the Nobles but not beyond their envie and are more secure then Gaveston in this that in their first sprouting the Kings Councell served himselfe and them to keepe in with the Commons by making good lawes such as the Statutes at Yorke of Essoines Attaints of Jurors Leavying of fines and Estreates into the Exchequer c. all of them promising good government The Barons neverthelesse like not the Spencers greatnesse and being by severall occasions exasperated joyne in one and occasion a new warre the King aided by the Commons who yet thought better of the King then of the Barons whom they saw prejudiced rather out of selfe-apprehensions then the publique good prevailed against the Barons and made them the first president of death upon the Scaffold Now the Spencers are Lords alone thinking themselves above reach of the once formidable Barons and the Commons too inferiour for their respect Thus lifted up they take a flight like that of Icarus They had so much of the Kings heart as they could not spare any part thereof to the Queen and she being as loath to spare so much for them as they had retired with the Prince to a reliefe which they brought from beyond Sea and with whom both Lords and Commons joyn The favourites missing of their wonted wings come down faster then they ascended and together with them the King himselfe all of
like manner 11. That debts between Clerks due are determined in the temporall courts 12. That Bishops are compelled by distresse to cause Clerks to appeare in Lay courts without cause 13. That the Church looseth its right by the ceasing of rent or pension by the space of two yeeres 14. That Nuns are compelled to sue in the Lay courts for their right in possessions befalling by decease of their kindred 15. That Churches are deprived of their priviledges till they shew Quo warranto they hold them 16. That Ecelesiasticall Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusals of Clerks presented are examined in the Lay courts 18. That patrons of Religious Houses do oppresse them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay courts 20. That the King suffers his Livings to be vacant for many yeeres 21. That the Clergie are wronged by the Statute of Mortmaine Here 's all and more then all that 's true and more then enough to let the reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtaine was to be attributed to the resolution of the Laity and not to any neglect in themselves for the Archbishop died in the service and its thought that grief for these maters was no little cause thereof But the times within a while grew troublesome Antiq. Brit. and the King in pursuit of the French warres being unadvised in in his way angred the people by his arbitrary levies of men and money Articuli cleri as it brought forth a State scoule little inferiour to a quarrell And to pacifie the Clergy he granted them the Writ de consultatione habenda in all matrimoniall and testamentary cases Stat. de consul tat 24. E. i. which were of their least doubted priviledges and this qualified the first Article of complaint next foregoing if such cause they had of complaint and this was all that the Clergy got at Edward the firsts hands Edward the second was a man that was neither well affected to Rome nor weake in spirit and yet so unhappy that his way neither promised good successe nor ever had it and so he became a servant unto the humours of his servants to keep his head above water but especially after he was chased by the Scots and quite out of breath he cals for help of all but first of the Clergy and bespeakes them with the Ordinance of Articuli cleri wherein he gives some satisfaction to the complaints formerly mentioned which it seems by Baronius were exhibited in Parliament Ecclesiasticall cognisance extendeth unto Tythes Oblations cap. 1. and Mortuaries and to pecuniary recompence In the first times neglect or deniall of Church-duties was punished in the Kings court by fine Afterwards the Bishop was joyned in that worke Ll. Alfred c. 9. Ll. Edw. cap. 6. and the tythable goods were seised eight parts whereof was taken to the Lords and the Bishops use by moities a ninth part left to the owner and the tenth to the Church Ll. Canut c. 8. nor had the Bishops any peculiar Courts of cognisance of causes till the times of the Normans nor as yet in those times had they power to all intents for though it be true that the Roman tribute of Peter-pence was allowed by the Conquerours law to the Bishops court Ll. Gul. 20. cap. Spicileg 180. yet we finde no law for Tythes and other profits to be recovered by the Ecclesiasticall court till about the end of Henry the seconds reigne or King Stevens time for at a Councell at London in Henry the seconds time it was ordained that three summons in the Popes name should be made to such as payed not their Tythes Binius Tom. 7 fo 661. An 1173. and in case they then refused they should be anathema and after that time in a Councell at Oxford under Steven Archbishop of Canterbury it was decreed that the Laity should be intreated first to pay their Tythes Baronius Annal. 1222. cap. 19. and then if necessity require that they should be compelled by Ecclesiasticall censure so as their power crept up by degrees in recovering of Church-duties as it did in testamentary matters and at length Henry the third worne and spent with the Barons warres about his latter end yeelded to Boniface the Archbishop his importunate demands and first gave liberty to the Clergy to be their own Judges and yet the Lay Judges although divers of them were Clergy men did not suddenly forbeare till this law came which gave some satisfaction to the first and fourth Articles of complaint foregoing Ecclesiasticall cognisance extendeth not to a fourth part of the Tythes of any Living cap. 2. nor to pecuniary mulcts for sinne saving by way of commutation The complaint of the Clergy in Henry the thirds time was against the Kings prohibition in case of Tythes indefinitly for in those times afterwards in Edw. the firsts time the Kings court had the cognisance of all Tythes and therefore in the Statute of VVestm 2. c. 5. the Writ of Indicavit was allowed in case of right of any portion of Tythes yet the Church still gained ground and about or before the death of Edward the first the Temporall Judge had yeelded unto the Clergy the cognisance of a portion of Tythes under the value of the fourth part Artic. 1. for in the Article next foregoing the Clergies complaint was that the Kings Justices held cognisance of the fourth part here they were confined thereto by this law which the Clergy could never remove For violence done to Clerks the offender shall render dammage in the Kings Court but Excommunication cap. 3. Penance and Commutation shall be in the Bishops court The Canon law had an ancient claime to the Protection of Clerks both as touching their persons and estates and prevailed so farre as they were thereby imboldned to offer violence unto others But as I formerly shewed by a Law in Henry the seconds time the Temporall Judge resumed his originall power and this became a sore evill between the Clergy and Laity for though it were allowed that Clerks should not be sued but before the Ecclesiasticall Judge in such cases yet it was no warrant for the Laity likewise to be called before the Ecclesiasticall Judge in such cases and therefore the Clergies complaints shew that the matter was doubtfull and that the Lay Judge generally maintained his jurisdiction although sometimes he disclaimed it as it may appeare in the case of a trespasse in the nature of a riot committed upon the priory of St Johns of Jerusalem in the seventh yeere of Henry the third when as it was adjudged per curiam that it belonged to the Ecclesiasticall court to punish Fits Harb 7 Hen. 3. prohibition 30 But
in Edward the firsts time by the Ordinance of Circumspecte agatis and Articles concerning prohibitions the difference was made between dammages and pre reformatione and the same affirmed by this Law and so the matter setled and the fourth Article of the Clergies complaint in some measure satisfied cap. 4. Defamation within cognisance of the Ecclesiasticall court and corporall penance therefore and Commutation The words are generall and peremptory with a non obstante the Kings prohibition and yet the Law afterwards restrained the sence to defamation for crimes or offences triable in the Ecclesiasticall court and this gave further satisfactin to the fourth Article of the Clergies complaint foregoing cap. 5. Tythes of new Mils may be recovered in the Ecclesiasticall court This Tythe of Mils was a new incroached Tythe never mentioned in any former law of this Kingdome nor demanded by the Synod at London Anno 1173. which mentions fruit trees young broods of living creatures that are tame Herbage Butter Cheese with other particulars but mentions not new Mils It s true that anciently Mils payd Tythes but such they were which were ancient and had payd the same by custome and such as by Law in the Confessors time were declared to be given a Rege Baronibus populo But by the second Article of the Clergies complaint next foregoing it appeares that the Kings Mils refused to pay this Tythe now whether the new Mils were called the Kings Mils as being made upon the publique streames by the Kings licence or whether the Mils newly made within the Demesnes of the Crown it s not to be insisted upon but its evident that till this Law made the new Mils would not tythe their labours One and the same matter may be tried at the common Law after sentence in the Spirituall Court in divers respects cap. 6. The great sore that was complained of was that the Clergy after purgation in the Ecclesiasticall court made were proceeded against in the Kings court in case of breach of peace or fellony as may appeare out of the 16th Article of the Clergies first complaints and the 8th Article of that taken out of Baronius Neverthelesse the present law subjoynes an example of the questioning a Lay man in the Ecclesiasticall court in case of violence done to a Clerke as a matter which may be tried in the Ecclesiasticall court and yet reviewed by the Kings court The Writ de Excommunicato deliberando shall not issue forth but upon evident breach of the Kings liberty cap. 7. This might be intended in satisfaction of the tenth Article of the Clergies complaint in Baronius and the tenth Article in the Clergies complaint first recited although that complaint both in the 10 11 12 and 33 Articles seem to be but clamour upon Officers and not the Kings court of justice Clerks Officers to the Exchequer are to be corrected by their Ordinaries cap. 8. and yet not tied to residence during their attendance on the Exchequer This is in part an answer to the second Article of the Clergies last complaint and a justification thereof as a thing that is pro bono publico Clergie mens goods shall not be distrained either in the high way or Sanctuary grounds cap. 9. unlesse such as have been of late purchase The complaint exhibited in Henry the thirds time and the 8th Article was onely in ordinary personall actions but in the complaint made in Edward the seconds time Article 12. is that it s without cause that they are so distrained This law yeeldeth them somewhat viz. immunity from distresse within their ancient possessions which had been by ancient custome priviledged but yeelds nothing as touching their latter purchased Lands because they had no such custome cap. 10. High waies and Sanctuaries shall be free for such as abjure so as they shall neither be restrained from liberty nor necessaries kept from them Felons may make free confession to the Priest without danger The grievance in the 22th Article of the Clergies complaint in Henry the thirds time and the ninth in that of the times of Edw. 2. are hereby relieved provided that the delinquent keeps himselfe in due order cap. 11. Houses of Religion shall not be oppressed with corodies pensions or entertainments of great men This answered the grievance in the 42 and 43 of the first complaint and the 18 of the latter and in effect little other then what was formerly setled by VVest 1. cap. 1. cap. 12. The Kings Tenants may be cited before the Ordinary out of their own Town and if Excommunicated for want of appearance the Writ de excommunicato capiendo shall be awarded A remedy this was against the grievances in the 12 and 33 Articles of the first complaint and in the 10th Article of the last scedule of complaints And thus the Clergy have gotten the day of the Kings Tenants which they had been striving for ever since the conquest as may appeare by what hath been formerly said and now the Kings Tenants are in no better condition then other men viz. they may now be excommunicated without the Kings licence nor is the answer Nunquam fuit negatum to be referred to the point of Excommunication for that power was denied them but unto the citing them out of their own Parish which cannot be found to be denied to the Clergy by any thing that yet appeareth A Clerke presented and found unable by the Ordinary shall be tried againe by the Ecclesiasticall cap. 13. and not the Lay Judge Although the fitnesse or sufficiency of the party presented is to be examined by the Ordinary yet the civill Magistrate hath power in action brought to inquire and determine whether the Ordinaries worke was rightly done and so the 17 Article of the last complaint answered Elections shall be free cap. 14. The law was of the same with this in the Stat. W. 1. cap. 5. which see before and it may be that the iniquity of the times continued notwithstanding and so occasioned the renewing of this law A Clerke having taken Sanctuary shall not be compelled to abjure cap. 15. Nor after confession of the crime cap. 16. or appealing others before the secular Judge shall be denied his Clergie Although the Temporall courts proceeded not so farre as to passe sentence against a Clerke that had taken Sanctuary yet they proceeded to inquiry as may appeare by what was said formerly concerning the Stat. West 1. cap. 2. and therefore though this law in the 15th Chap. alloweth that a Clerke in Sanctuary shall enjoy his Ecclesiasticall liberty yet the words legi Regni se reddens are interposed and the reason is because the King upon indictment found had right to the delinquents goods and profits of his lands untill due purgation 7 E. 2. Fits tit forfaiture 34. and then his Lands were by a Writ out of the Chancery to be restored to him againe nor could any purgation regularly
Chaplaine was disturbed enjoyned the Abbat to revoke his presentation upon this ground Cum igitur c. in English thus Antiq. Brit. Eccles fo 209. Whereas therefore that decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whiles they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their benefices c. And if this present law be considered whereof we now treat which tooke leave to enact a sence upon a former Canon so long since made and which is all one to make a generall Councell will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute 30 aff pl. 5. as was then conceived it will evidently appeare that the power of a Councell made up of a mixture of a few votes out of severall nations or the major part of them being unacquainted with the Laws and customes of Nations other then their own was too meane to set a law upon any particular Nation contrary to its owne originall and fundamentall Law And as the voters sent to the generall Councels from England were but few so neither were the Proctors as may appeare from this that Pope Innocent out of his moderation if we may believe it and to avoyd much expence as he saith did order that the number of Proctors in such cases should be few but in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevaile yet so blemish the contrary party that what the Pope should get must cost him losse of spirits if not blood and although the Bishops being fast friends to the Pope by vertue of their oath did prevaile in power and the Pope had the controll of the Councell yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the minds of the greater number of persons present though their votes were fewer To avoyd this difficulty therefore for more surety sake the Popes enlarged the number of the voters for whereas it seemeth to be an ancient rule that onely foure Bishops should goe out of England to the generall Councell Hoveden An. 1179. in after ages not one Bishop could be spared unlesse in cases of great and emergent consequence as may appeare by the Popes letter to Henry the third and the case required it for the oppressions of the Pope began to ring so loud M. Paris An. 1245. as the holy chaire began to shake Neither did Kings confine themselves to any certaine number of Proctors notwithstanding the Popes moderation but as the case required sent more or lesse as unto that Councell at Pisa for the composing and quieting that great schisme in the Popedome Henry the fourth sent solemne Embassadours and with them nigh eighty in all But unto the Councell at Basell Henry the sixth sent not above twelve or thirteene as Mr Selden more particularly relateth Spicil 215. And unto the councell at Lions formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extorsions of the Court at Rome their Legates and Emissaries The summe of all will be that the Acts of generall Councels were but councels which being offered to the sence of the Parliament of England might grow up to the degree of Lawes if the Parliament liked them Neverthelesse Nation all Synods Synods in England undertooke the quarrell of Generall councels for Archbishop Peckham in a Synod 1280. enjoyned the constitutions made in the Councell at Lions to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong and before him Boniface made constitutions in opposition to the customes of the Kingdome so as the matter was now come to a kinde of contest whither Synods or Parliaments should hold supremacy in doubtfull cases concerning the limits of the Ecclesiasticall and temporall power for henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now thinke themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inbibendo quod sicut Baronias quas de Rege tenent deligunt nullo modo praesumunt concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt Rot Parliam 18 H 3. num 17. quod si fecerint Rex inde se capiet ad Baronias suas And this prevailed so farre as the Bishops durst not adventure too farre least they should goe beyond their guard and therefore they come and aske leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of bastardy wherein they would have had their consent that children borne before marriage to be made legittimate by the marriage subsequent Stat. Merton cap. 9. and yet they could not prevaile for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon law and the laws of the Normans sided with them and so they obtained not their desire although they still retained the triall of generall bastardy unto themselves Neverthelesse the times were such as Kings being too weakly assisted by the people and the Clergy strongly seconded by the Pope they tooke advantage of those times of distraction so as to hold themselves no further obliged to the King then the Pope and their own covetousnesse would allow them and to make all sure they had setled it so farre as they were able by a constitution that the Clergy were not bound to ayd the King Papa inconsulto Antiq. Brit. and they put it in practise in a Synod under Archbishop Winchelsie Anno 1295. in the time of Edward the first and although the King prevailed in the conclusion at that time yet from the times of Henry the third the Clergy for future times granted their aides to the King by themselves and a part from the rest of the body of the Kingdome and held themselves not bound by any ayd granted by the Parliament albeit that their own ayds granted in their Synods were not obligatory unto the body of the Clergy in this Kingdome unlesse first allowed and confirmed by the Parliament And thus is England become like a two bodied monster supported with one paire of legs CHAP. LXVII Of the condition of the free men of England of the grand
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
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
the Kings high way or open street but by the Kings Officer and speciall Writ because distresse is incident to service and that is due as from the fee and therefore by common right the same must be recovered from the fee and such as owe service in the same but the high way or open street are more properly a franchise belonging to the King although the soile happly may be the Lords and therefore it was an old law that they should be under the Kings safegard Ll. Inae Sit pax publica per communes vias and no violence must be there tolerated but by the Kings especiall Writ which presupposeth the especiall notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distresse for it must not be excessive and also in keeping thereof for if the owner will he may replevy the same according to the ancient course Marlb cap 21. Glanvil lib. 12 cap. 12. and the Sheriffe must grant replevy if it be demanded although formerly no replevy was without speciall Writ and yet they also not alwaies readily obeyed For the times were such as the Lords were bold with the Kings courts and Ministers and refused the order of the law now in such cases wherein the matter concerned contempt of the Kings authority a fine was set upon the offender but in case it concerned onely a tort done to the party he was amerced the one is called redemption because the penalty otherwise must lie upon the person Miror cap. 5. Sec. 3. if it be not redeemed by pecuniary fine the other is called amercement which is originally a satisfaction unto the party wronged by recompence out of the personall estate of the delinquent Distric Scac. Artic. mag cart cap. 12. Thirdly as touching the matter of the distresse it must not be of Plough beasts or sheep unlesse in case of dammage fesant if other distresse may be had for the Law had a care of such Cattell as were most of publique concernment and which was the maine stocke of subsistence so farre as justice would allow and therefore the unjust taking of any mans Cattaile by any person whatsoever is liable to the same penalties that unjust distresses are West 1. cap. 16. Fourthly concerning the using of the distresse it must not be sold no not in the Kings case till fifteen daies be past after it is taken Marlbr cap. 4. Distric Scac. nor must it be carried out of the County but it must be so impounded as the owner may come to feed it and it must be discharged if the owner give security of satisfaction before the returne of the Writ Artic. sup cart cap. 12. Fifthly the intent of the distresses must be that which is just and therefore not for other suit then by the feofment is due or else by prescription and in case many are joyntly seised Marlbr cap. 9. the suit shall be by one and the rest shall contribute cap. 22. Nor must any man be compelled to shew his title to his Land by distresse cap. 13. The Common pleas shall be holden in one certaine place The Office of Judge of the Common-pleas was in my opinion distinct and severall from that of the Crown pleas nor though one and the same man might execute both authorities doth it therefore follow that it was by one and the same power as if being Judge he had thereby power in all matters of the Common pleas and also of the Crown for though it be true that Bracton saith the King hath one proper court wherein are the chiefest Judges Capitales Just nostri which both by his own testimony and Britons also did heare and determine causes of all sorts yet is it true also that it was by appeale or Writ of errour as in case of false judgement and that the King had plures curias Marblr cap. 20. which doubtlesse had their proper worke and in the time of Henry the second its cleare that six were especially assigned for the Common pleas throughout the whole Realme and yet by another especiall Commission or Letters patents the same men might also have power to determine matters of the Crown as at this day in their severall circuits This law therefore doth not as I conceive worke any alteration but onely in this that whereas formerly the Judges of Common pleas attended on the Kings Court continually as all other Judges did and whither the King removed they did the like which was a great uncertainty and grievance unto the Commons Henceforth they are fixed to a certaine place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely cap. 14. and by the Iustices itinerant sent by the King or his chiefe Iustices The law was so declared in Henry the seconds time and was questionlesse put in practise so farre forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the Kings Court but the Justices must come down to them and yet in case of difficulty the bench where the Common pleas are holden must determine the matter and where the time in the Iter in one County is too scant the remanets shall be adjourned over to be tried elsewhere in that circuit which sheweth that the Judges itinerant had their time proportioned out to every County These trials also were so favoured Westm cap. 51. as in the then holy times of Advent and Septuagesima or Lent they might be tried which although was gained by prayer made by the King to the Bishops as the words of that law are concluded yet it shewes that the Parliament had so much light as to hold the time not inherently holy but meerely sequestred by the will of the Clergy The Plantiffs also in Mortdancester may be divers if there be divers heires of one ancester by one title Stat. Gloc. ca. 6. And if there be joyntenants and the Writ be against but one and the same pleaded Conjanct feofat An. 34. E. 1. Stat. Gloc ca. 1 the Writ shall abate but if joyntenancy be pleaded and the plea be false the defendant shall be fined and imprisoned And if in the action the verdict be for the plaintiffe he shall recover dammages cap. 15. Darraine presentment shall be taken onely in the common Banke Trials in the common bank or other Courts at VVestminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally availeable This might be one cause why the Titles of Churches were still retained at the common Bank when as all other rode circuit For that Churches affaires in those times were of high regard Speed of triall also was not little regarded herein for Justices by Nisi prius properly were but for inquiry till the Statute at Westm the second made them of Oyer
and terminer in the cases of Quare impedit and Darraine presentment West 2. cap. 30. and gave them power to give judgement And thus the Commons gained still in point of conveniency cap. 16. Free men shall be amerced according to the degree of the fault saving to them their free hold and to Merchants their maine stocke and to villaines their Waynage and Clergy men shall be amerced according to their Lay fee. Barrons shall be amerced by their Peeres others by the vicinage In this regard is to be had first of the persons that are to be amerced then of the parties by whom and lastly of the nature and quantity of amercements The persons amerced are ranked into foure Classes Barons Clergy Free men and villaines But in regard of the parties by whom they are to be amerced they are but two Barons and Freemen for the Clergy villaines and free men are to be amerced by the free men of the neighbourhood Marlb cap. 19. In what Courts these amercements shall be the Stat. Marlbr tels us not before the Escheator nor other that make enquiry by Commission or Writ nor before the Justices of Assize or Oyer and terminer but only before the chiefe Justices or Justices itinerant The Statute of VVestminster addes a fifth Classes of Cities and Towns by expresse words Westm 1. cap. â— which seems not so necessary unlesse in pillaging and oppressing times for they were taken to be within the Statute of Magna carta Miror cap. 5. sect 4. though not therein named The rule of the quantity of amercements is now set down in generall and left to the discretion of the Peeres or Vicinage which formerly by the Saxons were specially set down in the law The rule in generall is with a ne plus ultra viz. not further or more then that the party amerced may spare and yet hold on in the maintenance of his course according to his degree And it must be also according to the quantity of the offence for the greatest amercements must not be ranked with the least offences so as in every degree the maine sustainance of the party is saved yea the villaines how ever meane they be they must have their maintenance And this sheweth that villaines had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unlesse they were the Kings villains who it seemeth were meerely under the Kings mercy as being both their Lord and King against whom they could hold nothing as properly their own and therefore in all other cases even then the villaines were borne under a kinde of liberty as in the Saxon times formerly hath been declared which the Law protected against their owne Lords No man shall be compelled to make repaire cap. 17 18. or maintaine any bridges banks or causies other or otherwise then they were wont to be made repaired or maintained in the time of Henry the second The limitation to the times of Henry the second sheweth that his justice was such as maintained the common rights of men but in the times of Richard the first Miror cap. 5. sect 2. and more especially of King John those rivers waters and fishings formerly used in common were incroached upon inclosed and appropriated to particular mens uses which occasioned many bridges banks and causies to be made and repaired to the great charge of private men all which are discharged by this Law cap. 19. No Sheriff Constable Coroner or other Bayliff shall hold any pleas of the Crown Escheators are also expressed in the old bookes of Magna carta and the abridgements however it seemeth that it s within the intent of the law which was made to avoyd the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of estates of men would inquire of matters concerning the lives of men and Sheriffs that had power of trials in cases of theft as hath been already shewen Ll. Hen. 1. c 8. Glanv lib. 1. cap. 2. abased the same for their own benefit because in such cases they had the forfeitures This law therefore takes away such occasions viz. from the Sheriffs and Corroners and Bayliffs or Justices other then by expresse commission thereto assigned all power to hold pleas of the Crown by triall leaving unto them neverthelesse power of inquiry of which anciently they had the right cap. 20. If the Kings tenant dieth supposed in arreare an inventory shall be made of his stocke by honest men but it shall not be removed till accounts be cleared and the overplus shall go to the Executors saving to the wife and children their reasonable part The first clause hereof was a law in Henry the firsts time and a customary law in Henry the seconds time Glanv lib. 7. cap. 5. being a remedy against an old Norman riot of the Lords seisure of the whole personall estate of the party deceased under colour of a law The second part concerning the overplus hath this additionall subjoyned in the Charter of King John If any free man die intestate his Chattels shall be divided by his parents and his friends in the presence of the Church saving to every one their proper debts and thus since the conquest the Church men incroached by degrees unto a great power in matters testamentary I say by degrees for as yet by this law it appeareth that they were but overseers or eye-witnesses for as yet right of ordering or disposing they had none as may appeare in that case of a bastard dying without issue and intestate the Lord shall have his personall estate Glanvil lib. 7. cap. 16. and in all cases the executor had then nothing but bare assets and the overplus was assigned between the wife and children according to their reasonable part or if the party died intestate the next friends did administer paying the debts and making dividend of the overplus into the reasonable parts according to the ancient Saxon custome still continued nor doth the testimony cited out of Bracton prove any other then that the auncestor hath free power to order his estate as he pleaseth Coke instit 2. pag. 33. and that the children shall have no more then is left unto them by their auncester either in his will or in case of dying intestate by the custome or law which is and ever was the rationabilis pars No purveyance for any Castle out of the same Town where the Castle is but present satisfaction must be made cap. 21. and if in the same Town satisfaction must be made within forty daies Purveyance was ancient provision for the necessities of the publique and so farre was commendable seeing it s not the common case of all men to regard the publique above their own private interest therefore the publique must provide for it selfe by their meanes in whom the publique is most concerned and this
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
England albeit that other parts of the Kingdome had not the like present regard as the City of London had cap. 26. The Writ of precipe in capite shall not be granted of any free hold whereby a man may be in danger of loosing his Court thereby It seemeth that it was one of the oppressions in those times that if a suit were commenced in the inferiour or Lords court concerning a free hold A Writ of praecipe in capite might be had upon a surmise that the free hold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoile of the demandants case and therefore I thinke the charter of King John instead of the word court hath the word cause There shall be but one known weight and measure cap. 27. and one breadth of Cloathes throughout the Realme of England This law of weights and measures was anciently established amongst the Saxons Ll. Edgar c. 3. as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John And as touching the measure of the bredth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudiciall to the common trade of the Kingdome it was setled in this manner to avoid deceit and to establish a known price of Cloths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of life and member shall be readily granted without fees cap. 28. It was a Law of latter originall made to take away a Norman oppression for by the Saxon law as hath been already noted no man was imprisoned for crime not baylable beyond the next County court or Sheriffs Torne but when those rurall Courts began to lose their power and the Kings courts to devoure trials of that nature especially by the meanes of the Justices itinerant which were but rare and for divers yeeres many times intermitted during all which time supposed offenders must lie in prison which was quite contrary to the liberty of the freemen amongst the Saxons it occasioned a new device to save the common liberty by speciall Writs sued out by the party imprisoned or under baile supposing himselfe circumvented by hatred and malice and by the same directed to the Sheriffe and others an inquisition was taken and triall made of the offence whether he deserved losse of life or member and if it were found for the supposed offender he was bailed till the next comming of the Justices and for this the Writ was called the Writ of inquisition of life or member and sometimes the Writ de odio atia But these inquests were soon become degenerate and subject to much corruption and therefore as soon met with a counterchecke from the Law Or first rather a regulation West 1. cap. 11 for it was ordained that the inquest should be chosen upon oath and that two of the inquest at the least should be Knights and those not interressed in the cause but yet this could not rectifie the matter for it seemed so impossible to doe justice and shew mercy this way Glocest cap 9. that the Writ is at length taken away and men left to their lot till the comming of Justices itinerant But this could not be indured above seven yeeres for though the King be a brave souldier West 2. cap. 29. and prosperous yet the people overcome him and recover their Writs de odio atia againe cap. 29. Lords shall have the Wardships of their Tenants heires although they hold also of the King in Petit Serjeanty Soccage Burgage or fee Farme Inferiour Lords had the same right of Wardships with the King for their tenures in Knightservice although their tenants did hold also of the King unlesse they held of him in Knight-service which was a service to be done by the tenants own person or by the person of his Esquire or other deputy in his stead but as touching such service as was wont to be done to him by render or serving him with Armes or other utensiles this was no Knightservice though such utensiles concerned warre Glanvil lib 7. cap. 9. but was called Petit Serjeanty as in the Lawbookes doth appeare Neverthelesse Henry the third had usurped Wardships in such cases also and the same amongst others occasioned the Barons wars cap. 30. No judge shall compell a freeman to confesse matter against himselfe upon oath without complaint first made against him Nor shall receive any complaint without present proofe This law in the originall is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in expresse words it is thus No Judge shall compell any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter inquired after and therefore they used in such cases to put him to oath and if he denied the matter or acquitted himselfe the Judge would sometimes discharge him or otherwise put him to his compurgators and this was called lex manifesta or lex apparens and it was a tricke first brought in by the Clergy and the temporall Judges imitated them therein and this became a snare and sore burden to the subjects To avoyd which they complaine of this new kind of triall and for remedy of this usurpation this law reviveth and establisheth the onely and old way of triall for Glanvill saith Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia Bracton fo 106 and therefore no man ought to be urged upon such difficulties unlesse by the expresse law of the land The old way of triall was first to bring in a complaint and witnesses ready to maintaine the same and therefore both appeales and actions then used to conclude their pleas with the names of witnesses subjoyned which at this day is implied in those generall words in their conclusions Et inde producit sectam suam that is he brings his sect or suite or such as doe follow or affirme his complaint as an other part also is implied in those words Et hoc paratus est verificare Seld. super Hengham For if the plaintiffs sect or suit of witnesses did not fully prove the matter in fact the defendants averment was made good by his own oath and the oathes of twelve men and so the triall was concluded No free men shall be imprisoned or disseised of his freehold cap. 31. or liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peeres Nor shall justice be
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
that if the party appealed was acquitted the appealor should not onely render dammages but be imprisoned for a yeere The County court shall be holden at the wonted time cap. 36. The Torne shall be holden at the accustomed place twice in the yeere viz. after Easter and Michaelmas The view of Frank pledges shal be holden at Michalmas The Sheriffe shall not extort The Sheriffs Courts had now lost somewhat of their jurisdiction though for time and place they are confirmed statu quo to the end that through uncertainty thereof the suiter might not make defaults and be amerced yet they lost much of their respect within the compasse of these few yeeres by two laws Merton cap. 10 the one of which made at Merton allowed all suiters to the rurall Courts to appeare by proxy or atturney which it seemeth had power to vote for the masters in all cases publique and private and did not onely themselves grow into parties and maintenance of quarrels and so spoiled these Courts of their common Justice but rendred the freemen ignorant and carelesse of the common good of the Country and given over to their own private interest And though the corruption of justice was soon felt West 1. c. 33. and against it a law was provided viz. that the Sheriffe should not allow of such corrupt atturnies yet this was no cure to the free men who were still suffered to wax wanton at home albeit that they were discharged from doing their suite in all other Hundreds but that wherein they dwell Marlbr cap. 10. The second law that tooke away much honour from these Courts was that law at Marlbridge Ibid. that discharged the Baronage of England and the Clergy from their attendance at such service and this also opened the doore wider to oppression for where greatnesse is it carieth therewith honour from the meaner sort and a kinde of aw and stop unto the minds of such men that otherwise would riot without restraint and though it might also be said that the pretence of great men in such Courts would oversway the meaner and make strong parties yet it must also be acknowledged that these parties being greater are the fewer and doe not so generally corrupt all sorts as the corruption of the meaner sort doe it s said by the wise man where the poore oppresse the poore its like a raging raine that leaves no food The last branch in this Law is an inhibition to the Sheriffe from extortion and surely there was great need and much more need then ever now that the Lords and Clergy are absent It was thought that the great occasion of the Sheriffs oppression was from above I meane from the King that raised the vallews of the farme of Counties granted to the Sheriffs Artic. super cart cap. 13 14. Stat. de vice com An. 9 E. 2 for in those daies Shieriffs gave no accounts as of later times they have done and therefore the Charter of King Iohn between the 17 and 18 chapter inserteth this clause Omnes commitat Hundred Wapentag Trethingi sint ad antiquas firmas absque ullo incremento exceptis Dominicis Maneriis nostris But this did not worke the worke although it tooke away occasion for the humour was fed from within and turned to a sore upon that place that could never be cured to this day Nor could the wisdome of times finde other helpe to keepe the same from growing mortall but by scanting the diet and taking away that power and jurisdiction which formerly it enjoyed cap. 37. The 37 Chapter hath been already noted in the Chapter of the Clergy next foregoing cap. 38. Escuage shall be taxed as was wont in the time of Henry the second The Charter of King John hath superadded hereunto this ensuing provision There shall be no Escuage set in the Kingdome except for the redeeming of the Kings person making of his eldest sonne a Knight and one marriage of his eldest daughter and for this there shall be onely reasonable ayd And in like manner shall the ayds of the City of London be set And for the assessing of Escuage we will summon the Archbishops Bishops Abbots Earles and greater Barons of the Kingdome specially by our severall Writs and will cause to be summoned in generall by our Sheriffs and Bayliffs all other our tenants in capite to be at a certaine day after forty daies at the least and at a certaine place and we will set down the cause in all our Writs And the matter at the day appointed shall proceed according to the councell of those that shall be present although all that were summoned doe not come And we will not allow any man to take ayd of his free men unlesse for redemption of his body and making his eldest sonne a Knight and one marriage for his eldest daughter and this shall be a reasonable ayd onely Thus farre the Charter of King John concerning this point of taxe or assessment and if the History saith true the Charter of Henry the third was one and the same with that of King John then either this was not left out in Henry the thirds Charter in that Historians time M. Paris or if it was omitted in the originall it was supposed to be included in the generall words of the Law as being accustomed in times past and then these particulars will be emergent First that the ayds and Escuage in Henry the firsts time were assessed by the same way with that in this Charter of King John for that all the quarrell between the Lords and King John was concerning the charter of Henry the first which the Lords sware to maintaine Secondly M Paris An. 1214 1215 25 Edw. 1. cap. 6. 34 Edw. 1. cap. 1. West 1. cap. 36. that neither ayds nor escuage were granted or legally taken but by Act of Parliament although the rate of them was setled by common custome according to the quantity of their fee. Thirdly that some Parliaments in those times as concerning such matters consisted onely of such men as were concerned by way of such charge by reason of their tenancy for escuage only concerned the tenants by Knights service and therefore those onely were summoned unto such Parliaments as onely concerned Escuage nor had the City of London nor the Burgesses right to vote in such cases it is said p. 258. And thus the Forrest laws that were made in the time of Ri. 1. were made by the consent of Archbishops Hoveden 445. Bishops Abbots Earls Barons and Knights of the whole Kingdome for what the great men gained they gained for themselves and their tenants And the truth is that in those times although publique dammage concerned all yet it was ordinary for Kings to make a shew of summoning Parliaments when as properly they were but Parliamentary meetings of some such Lords Clergy and others as the King saw most convenient to drive on his own designe and therefore
we finde that Henry the third about the latter part of his reigne when his government grew towards the dregs he having in the Kingdome two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings Gloss tit Baron but five and twenty Barons and one hundred and fifty of his Clergy Neverthelesse the law of King John was still the same and we cannot rightly read the law in such presidents as are rather the birth of will then reason Fourthly that no ayds were then granted but such as passed under the title Escuage or according there unto for the words are No Escuage shall be demanded or granted or taken but for redeeming the Kings person Knighting of his sonne or marriage of his daughter Nor is the way of assessing in these times different saving that instead of all the knights two onely are now chosen in every County the tenure as it seemeth first giving the title of that order and both tenure and order now changed into that title taken up for the time and occasion Fifthly that it was then the ancient custome and so used in the time of Henry the first that the advice of those then present was the advice of the whole and that their advice passed for a law without contradiction or notwithstanding the Kings negative voice for the words are The matter at that day shall proceed according to the councell of those that shall be present although all doe not come and therefore that clause in the Kings oath quas vulgus eligerit may well be understood in the future and not in the pretertence Last of all though not gathered from the text of this law whereof we treat yet being coincident with the matter it is observable that though the Clergy were now in their ruffle and felt themselves in their full strength yet there befell a posture of state that discovered to the world that the English held not the interest of the Clergy to be of such publique concernment or necessary concurrence in the government of the Kingdome Walsing An. 1297. as was pretended For the Clergy finding assessements of the Laity so heavy and that occasions of publique charge were like to multiply daily they therefore to save the maine stocke procured an inhibition from Rome against all such impositions from the Laity and against such payments by the Clergy and in the strength of this they absolutely refused to submit to ayd Edward the first by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them devided from it and not onely outed of all priviledge of Parliament but of all the priviledge of subjects into the state of praemuniri and thus set them up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry 3d. not satisfied with this ancient and ordinary way of assessement upon ordinary occasions tooke up that extraordinary course of assessement upon all the free men of the Kingdome which was formerly taken up onely in that extraordinary occasion of redeeming of the Kings or Lords person out of captivity and common defence of the land from piracy and under the title of Daneguelt which was now absolutly dead and hanged up in chains as a monument of oppression Neverthelesse it cannot be denied but that in former times the free men were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the law aforesaid of King John doth appeare and whereby its probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the third the fame suiting also with the third observation foregoing doth not a little favour the same for its expresly set down that in lieu of the Kings confirmation of the Charter of liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earles Barons and Knights but also the free men and all the Kingdome gave a fifteenth of all their moveables And thus have I summed up and compared both the copies of the grand Charters of Englands liberties saving two particulars inserted into the Forest laws of Henry the third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the third might as he was advised plead nonage M. Paris An. 1227. and so they might have been choked in their birth but being all consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much bloodshed and themselves into so many troubles to avoyd their own acts unlesse the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loath to publish the same to all men It s a strange vanity in great men to pretend love to justice and yet not indure to be bound thereto when as we see that God himselfe loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the third of this spirit faine they would undoe but could not It s true it was at the first but a Kings charter of confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be voided but by surrender from the whole body Marlbr cap. 5. Having thus summed up the liberties of the subjects and free men of England under this Charter I shall make some appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these prerogatives above all Lords Prerog Reg. cap. 9. The King shall have the custody of fooles and ideots lands for their maintenance and shall render the same to their heires And concerning mad-men and lunaticks cap. 10. the King shall provide a Baylisse for their maintenance rendring account to them when they are sober or to their administrators It is no lesse liberty or priviledge of the people that fooles and mad persons are to be ordered by tutors then children and therefore this may be annexed to the rest of the liberties as well as the other Neverthelesse it seemeth that the Laws tooke them into their regard in respect of their estates which might be abused to the prejudice of the publique rather then out of respect had to their persons Now because there is a difference between the disability
of these persons the one being perpetuall the other temporary therefore is there also by these laws a difference in the disposall of their estates for the tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the naturall affection going along with the blood and this so continued in custome untill these times for though the Miror of Justices saith that Henry the first brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the first speaking of these kind of persons saith Bract. lib. 5. cap. 20. Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their parents and friends Lib. 1. cap. 10 But let the time of the entrance of this law be never so uncertaine it s now a declared law that the King in such cases is the common curator or tutor of all such persons as he is a chiefe Justice rendring to every one his right The King shall have the wrecks of the Sea Prerog Reg. cap. 11. West 1. cap. 4. What shall be called a wreck the Statute at Westm 1. declareth viz. where the ship so perisheth that nothing therein escapeth alive and these are rather in their originall committed to the King as a curator then given him as a proprietor although that custome hath since setled a kind of right which may perhaps be accounted rather a title by estoppell For the fundamentall ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appeare Marlb cap. 17. The heire in Socage tenure shall have an action of waste and an accompt against his guardian for the profits of his lands and mariage The heire in Socage being under age shall also be under custody of such guardian of the next kindred Bracton lib. 2. cap. 37. who cannot challenge right of inheritance in such lands so holden as if the Lands descended from the father side the mother or next of the kindred of the mothers side shall have the custody and so if the Lands descend from the mother the father or next kindred of the fathers side shall have the custody And this custody bringeth with it an authority or power onely and no right as in case of the heire in Knightservice and therefore cannot be granted over as the wardship in Knightservice might but the guardian in Socage remaineth accomptant to the heire for all profits both of land and marriage The full age of tenant in Socage is such age wherein he is able to doe that service which is 14 yeeres for at such age he may b able by common repute to ayd in tillage of the ground which is his proper service But the sonne of a Burgesse hath no set time of full age but at such time as he can tell money and measure cloath and such worke as concerne that calling Merton cap. 1. Widdows deforced of their Dower of Quarentine shall by action recover damages till they recover their Dower cap. 2. They shall also have power to divise their crop arising from her Dower Bract. lib. 2. cap. 40. It was used that the heire should have the crop with the Land but this Statute altered that former usage and yet saved the Lords liberty to distraine if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy West 2. cap. 24. and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilfull in the Law It was none of the meanest liberties of the freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no lesse a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wils and not of the Laws of the Kingdome M. Paris addit Artic. 44. as the complaints of the Clergy in the times of Henry the third doth witnesse Neverthelesse because many mens cases befell not directly within the Letter of any Law for remedy and yet were very burdensome for want of remedy it s provided by this Law that in such emergent cases that doe befall within the inconvenience shall likewise be comprehended within the remedy of that law Aide to make the sonne of the Lord a Knight West 1. c. 36. and to marry his eldest daughter shall be assessed after the rate of twenty shillings for a Knights fee and twenty shillings for twenty pounds in yeerely value of Soccage tenure The uncertainties of ayds are by this Law reduced and setled as touching the summe and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular summe hereby but also the age of the sonne when he was to be made a Knight viz. at the age of fifteen yeeres too soon for him to performe Knightservice but not too soone for the Lord to get his money And the daughter likewise was allowed to be fit for marriage at seven yeeres of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gaine that made the Law and it was not amisse to have the ayd beforehand though the marriage succeeded not for many yeeres after and if the Lord died in the interim the executors having assets paied it or otherwise his heire CHAP. LXVIII Of Courts and their proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of latter birth albeit even they also have been of ancient constitution and divers of them itinerant also and some of them setled in one place The worke of the Justices itinerant was universall comprehending both matters of the Crown and Common-pleas That of oyer and terminer is onely of Crown pleas originally commenced and inquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large worke that is to deliver the Gaols of all criminall offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognisance of Common pleas onely and for the most part are but fo inquiry All which saving the Justices itinerant in ancient use were instituted
Nation who value their estates and liberties above their owne lives Rape West 1. cap. 13. Rape upon the complaint of the party violated made within forty daies shall have right If the delinquent be convicted without such complaint made he shall be fined and imprisoned Before this Law this crime was but finable unlesse the fact was committed upon a virgin for then the member was lost And this was the Saxons Law but the Normans inflicted the losse of the member upon all delinquents in any rape Nor was this made fellony by any law or custome that I can finde till about these daies It s true that Canutus punished it capitis aestimatione by way of compensation which rather gives a rule of dammages to the party wronged then importeth a punishment inflicted for an offence done against the Crown as if it were thereby made capitall But for the more certainty of the penalty another law provideth that if the rape be committed without the womans consent subsequent she may have an appeale of Rape West 2. cap. 34. And though a consent be subsequent yet the delinquent upon indictment found shall suffer death as in the case of appeale But if a wife be carried away with the goods of her husband besides action of the party the King shall have a fine If the wife elopeth she shall lose her Dower if she be not reconciled before her husbands death All which now recited provisoes are comprehended together in one chapter and yet the Chapter is partee per fess French and Latine so farre thereof as concerneth death was written in French being the most known language to the great men in generall many of whom were French by reason of the interest that Henry the third had with France in his late warres against the Barons It was therefore published by way of caveat that no person that understood French might plead ignorance of the law that concerned their lives The residue of that Chapter was written in Latine as all the other Laws of that Parliament were upon grounds formerly in this discourse noted One proviso more remaineth which is also comprehended in the same Chapter with the former viz. Any person that shall carry away a Nunne from her house shall suffer imprisonment for three yeeres and render dammages to the house This crime was formerly onely inwombed in the Canon law and now borne and brought forth into the condition of a Statute law rather to vindicate the right of the free men then in any respect had to the Clergy Antiq. Brit. fo 197. who had been very bold with the liberty of the free men in this matter for Archbishop Peckham not a yeere before the making of this law for this offence had excommunicated Sir Osborne Gifford nor could he get absolution but upon his penance first he was displed with rods three times once in the open Church at Wilton then in the market-place at Shaftsbury and lastly in the publique Church there then he must fast divers moneths Lastly he must be disrobed of all Military habiliments viz. Guilt Spurs Sword Saddell golden Trappings and to use no brave garments but russet with Lambe and Sheepe skins to use no shirt nor take up his order againe untill he had spent three yeeres pilgrimage in the Holy land and unto this penance the Knight by oath bound himselfe A strange power and to represse which it was time for the people to looke about them and rather to punish delinquents themselves then to leave it to the will of such men as never had enough Concealment or neglect of apprehending of felons punished by fine and imprisonment Concealment of Felons West 1. cap. 9. In those ancient times pursuits of felons with hui and cry were made by Lords of mannors Bailiffs of liberties Sheriffs and Coroners whereas now they are made by Constables See more in the Chapter of peace Escapes also were punished with fine and imprisonment and in some places the Lord had the fine in other places the Sheriff and in some cases the King West 1. cap. 3. yet it in no case was any fine assessed or taken till the triall before the Justices Persons defamed for felony Defamed Felons West 1. cap. â— not submitting to triall by Law shall be committed to close and hard imprisonment It hath been accounted an extreame construction of this law and questionlesse so it is that this Law should warrant that punishment of pressing to death which hath been of later times more constantly used then former times ever knew of for though it be granted that some tricke of torture was sometimes used even before the Norman times and so might now and then leave some few examples after the Norman times yet did the law never patronise such courses especially if the death of the party suspected ensued thereupon Miror cap. 1. sect 9. but accounted it manslaughter And the end of this law was not to put a man to death but to urge him to confesse and so Briton saith such as will not submit to triall shall be put to penance till he shall pray to be admitted thereunto and therefore the penance then used was such as did not necessarily inferre death Briton cap. 4. sect 24. nor was it a finall judgement in the triall but onely a meanes thereto and therefore it might rather consist in deniall of conveniences then inflicting of paine Now in what cases it was used may be understood from the manner of the indictments in those daies whereof besides appeales by the party some were of particular fact done others onely of a fame and it may be conceived that the course in the second was Glanvil lib. 10 cap. 1. that if a man would not submit but would stand mute he was put to this kind of imprisonment for the discovering law was by Henry the third taken away But if the delinquent was positively accused of a felony and thereupon indicted by a witnesse of the fact and then the delinquent would not submit to his triall by law in such case the finall judgement was to die O nore fame c. because in the one there was a fact affirmed against him by a witnesse and in the other onely a fame or suspition which is not pregnant against the life of a man But this manner of indictment being now laid aside and all proceedings being upon a fact affirmed against the party I conceive this law of no use at all in these daies Bayle West 1. cap. 15. Baile shall not be allowed to Out-laws fore-jured Thieves taken in the act notorious Thieves appealed persons burners of houses breakers of prison false coiners counterfeiters of the Broad-seale prisoners upon excommunication open malefactors and Traitors against the King The six first are in nature of persons attainted either upon their own confession or such manifest evidence as in common reason cannot be gainsayd all which were before this law under baile yea the last
consisted in preventing and suppressing riots routs unlawfull assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other malefactors And herein we are to consider 1. The Laws 2. The meanes 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the Kings own person and therefore we finde not onely the assize of Armes but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can finde put the same into the force of a law by Parliament finding by experience that Proclamations may declare the Kings mind but not command the peoples wils although peradventure the thing enjoyned was of ancient use and little inferiour to custome or Common law Such are the distempers of civill broiles that bring up peace in the reare as a reserve when their owne strength is wasted rather then out of any naturall inclination thereto A briefe recollection of the laws thus ensues Stat Wint. 13 Edw. 1. cap. 1. In case of Robbery or fellony committed and the delinquent be not forth cemming or discovered the County or Hundred shall answer the dammages Of this more may appeare from the Norman and Saxon laws the intent appeareth by the law it selfe to stirre up the people to use all meanes by pursuit with hui and cry and making inquisitions of the fact with all speed in Townships Hundreds Franchises and Counties cap. 2. Persons suspected shall not be entertained or harboured by any inhahitant unlesse He will undertake for him Of this also formerly both in the Norman and Saxon laws cap. 3. Walled Towns shall keepe their gates shut from Sunne set to Sunne rising The like observed in Cities Burroughs and Townes from the feast of Ascention to Michaelmas The power of the watch was great it might apprehend any passenger and stay him all night and if he be a suspected person he is to be committed to the Sheriffe and if an escape be made the party is to be pursued with hui and cry These two last Chapters were in effect in Henry the thirds time in course by way of the Kings command by Writ in the 36 and 37 yeers of his reigne with some more particulars concerning the same M. Paris in Addit post Adversar cap. 4. High waies through every Lordship shall be kept cleare on each side by the space of 200 foot from hedges ditches Bushes and underwood High waies herein intended are such as are from one Market Town to another and in such were alwaies preserved the publique peace or safety for the maintenance of commerce and freedom of traffique which is of such publique concernment that it hath been of very ancient institution Every man between the age of fifteen yeeres and forty shall maintain Armes in his house cap. 5. according to the ancient Assize for the preserving of the peace This Chapter brings into consideration the second thing propounded viz. the meanes of preserving of the peace which are two First by maintaining Armes 2. By certifying defaults In the first is to be considered the persons that are to be assessed 2. The Armes 3. The end The persons to be assessed to Armes are indefinitely set down and comprehend all sorts as well bond as free and others for such are the expressions in the Commission of Henry the third 36 Hen. 3. M. Paris post adversaria Hoveden But by the Assize of Henry the second none were to be armed but free men and they worth sixteen or ten Marks in goods at the least yet their ages are limited by this Law they must be between fifteen yeeres and forty but by the Commission in Henry the thirds time all between fifteen and sixty yeeres of age were to be armed King John arrayed all sorts free bond and all others that have Armes or ought to have or can carry Armes M Paris Anno 1213. and it seems by what hath been formerly noted that those that were younger then their tenure would beare them out were accepted into service if they would offer themselves but by these courses they though under one and twenty yeeres of age were not onely accepted but compelled to warre Hoveden Hen. 2. M. Paris addit Under this title we may also touch upon the persons that were the instruments to array these men or rather to arme them and these were Justices itinerant or one or more Commissioners such as the King found most meet for the service and unto these were Commissions with instructions sent and sometimes Writs were directed onely to the Sheriffs to take with them twelve Knights of the County M. Paris post adversaria and to goe into every Hundred and call before them all such persons as by the law ought to be assessed at Armes and to cause them to be sworn to finde and maintaine Armes in such manner as by the Law they then should be or formerly were assessed and sometimes the establishment of Armes were set down in those Writs and sometimes published by Proclamation M. Paris Anno 1253. 1256. For Kings found all means little enough to prevaile to bring in alteration of Armes and of their service which was a thing not onely troublesome but chargeable and whereunto they could not easily prevaile to bring the freemen to consent and therefore sometimes the indeavours of Kings in such cases did not onely meet dilationem M. Paris An. 1253. but also deletionem as the Historians words are untill the way was found out to declare an establishment by Parliament by this Statute made at Winton Now for the nature of the establishment we are to consider that the people of England were distinguished according to their teanures Ll. Gulielm 58. into such as held by Knightservice and such as held by Soccage and that none but those being freeholders could be charged to finde armes according as by the Lawes of the Norman Conquerour may appeare The establishment of Armes for the Knights were established by their tenures in certainty and therefore no need was either of assessment or oath to tie them to finde such Armes but all the difficulty was for such as were not bound by other tenure then as free born subjects all of whom doe owe to their Country defence and so questionlesse had liberty to provide themselves of such armes as were by common and constant use held most advantagious against the common enemy and for the publique defence And that these were put in certainty may appeare by the Law of King VVilliam formerly noted and by some instances in the Saxon Laws anciently used Ll. Aethelst c. 16. amongst others that Law of Aethelstane that for every plough every man
touching the degrees in Henry the seconds time they were but three in regard that he onely assessed free-holders and certainly that was the ancient Law as by the law of the Conquerour and other Saxon laws formerly mentioned may appeare But Henry the third taking example of King Iohn who was the first founder of generall arrayes charged all but such as were men of nothing albeit I finde not that such as were of the inferiour degree were sworn to those Armes but rather allowed to have them And though the Statute at Winchester holdeth to the same degrees in Lands yet in the valew of goods there is some difference in favour of them that onely have stocke and no freehold Secondly there is some difference in the manner of valuation of Lands with Chattels and therein the Statute at Winton favours the personall estates more then Hen. 3. and he more then Hen. 2. and yet all of them pretend one rule of ancient custome I believe they mean that they had it in their eye but not in their heart for they would come as nigh to it as they could and yet keep as farre from it as they durst Thirdly as touching the difference of the Armes between these three assessments it seems so small as in this they are most of all one For wherein Hen. 2. leads both Hen. 3. and Edw. 1. doe imitate saving that they adde the Horse and Sword which questionlesse was to be understood as a granted case that the compleat Armes of a man could not be carried and mannaged without a Horse nor defended without a Sword As touching other alterations it might be done upon good advice as not being deemed meet that such as were no Knights but in estate should be armed in every respect like as the Knights were And thus we have an ancient custome of maintaining Armes by every free man for the defence of the Kingdome first made uncertaine by the avarice of Kings and negligence of the free men and brought into an arbitrary charge at length reduced to a certainty upon all sorts of inhabitants by a Statute law if so it then were unto which every man had yeelded himselfe bound by his own consent But to what end is all this I said it was for the defence of the Kingdom and so it was in the originall and yet also for the safety of the King in order thereunto and for the safety and maintenance of the peace of every member of the whole body This in one lumpe thus will not down with some who will have this assessment onely to be for keeping of the peace against routs and riots but not sufficient not intended to be supply for warre when Edward the first cals for it because Edward the first shall not have his power confined within the compasse of a Statute but to be at liberty of array as he should think meet and it s not to be denied but the words of this Law runne thus viz. That the intent thereof is for preserving of the peace but those generall words will not beare the power of a restrictive sence for certainly the peace is as well preserved by providing against warre as against riots and against forraine warre as intestine mutinies and that the Statute intended the one as well as the other will appeare because it was made in relation to former presidents of Henry the third and they speak plainly that their intent was to strengthen the Kingdome against dangers from abroad the words of the Historian are cleare that Henry the third charged all that had 15 libratas terrae and upwards should undertake the Armes of a Knight ut Anglia sicut Italia militia roboraretur M. Paris fo 926 And because he had threats from beyond Sea by the defection of the Gascoines therefore he caused Writs to issue forth throughout the Kingdome that secundam pristinam consuetudinem M. Paris fo 864 assessement of Armes should be secundum facultates and in one of the Writs published by the Historian the expresse assessment of Hen. 3. formerly mentioned is particularly set down Vid. post Adversaria M. Paris Nor are these Armes thus assessed so slight as men would pretend for the Armes of the first ranke were the compleat Armes of a Knight and their estates equall thereunto for those 15 libratae terrae amounted unto 780 acres of Land as the late publisher of Paris his History hath it and is very nigh the reckoning of Henry Huntington who as hath been mentioned layeth a Helmet and coate of Maile unto eight hides of Land which according to Gervase of Tilburies account commeth to 800 acres Cap. penalt every Hide containing one hundred acres These therefore were better then Hoblers And the succeeding ranks found Armes also proportionable to their estates as considerable as the times could finde for such as were of constant use and might be supplied with other weapons as occasion served and as they might be of most benefit for the service Furthermore whereas it s said that the wisdome of the Parliament might be questioned if they intended no better provision against an enemy then against a thiefe or rogue I should desire the consideration of those men whether are those thieves and rogues in Troops or bodies and well armed or are they a sort of scattered out-lawes lightly armed to flie away when they have have gotten the prey If they were in the former posture I pray what difference in point of difficulty of suppressing between them and so many enemies and if it was discretion in the Parliament to make this provision against the one certainly these with the Knighthood of the Kingdome with as much discretion will be sufficient provision against the other But if these be looked upon in the latter sence I feare the discretion of the Parliament would have been much more questioned in arming all men that have any ability to suppresse Thieves and Rogues against which the ordinary watch and ward of the Kingdom was an ancient and approved remedy and sufficient safeguard And I would fain know of these men whither it be for the safety of Edward the first or any other King to arme the whole body of the people especially in times of jealousie for suppressing of Thieves and Robbers when as it may be done by a guard of known men in every County with much more ease and lesse charge to the people Lastly whereas it s endeavoured to make this Statute but a temporary provision and taken up for the present condition of affaires when Thieves and Robbers went with great strength and in multitudes This might be I grant of some efficacy if it had been introductio novi juris but it being grounded upon a former custome the ground of that custome which was defence of the Kingdom must be the warrant of the Law otherwise the present inconvenience might be remedied by a present order and needed not the help of a Law that should rest upon former custome
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
15. nor out of the County without allowance of the Sheriffe or other Governour of the same And if any controversie arose between the pledges the chiefe pledge by them chosen called also the Deane or Headburrough may determine the same Ll. Edw. c 20. but this held onely in matters of lighter consequence CHAP. XXVII Of Francheses and first of the Church Franches WE have hitherto trode in the rode way of the government of the Common-weale but private regards have made by-paths which we must trace or else the footsteps in many particulars will remaine unknown These are called exemptions but more ordinarily Francheses from which scarce any part of the Kingdome remained free and are to be considered eithet in regard of the place or person In the later I intend that of the Churchmen whose persons and estates in many particulers were exempted from the civill power of this Kingdom Their persons devoted to a peculiar worke they would have to be under a peculiar Law called the Canon law which at the first extended onely to their own persons and that onely pro reformatione morum Concil Brit. p. 258. for so an Archbishop tels us that it did teach quomodo Canonici id est regulares Clerici vivere debent but when it grew to its full charge it gave a louder report Quicunque aliquid tenuerit vel in fundo Ecclesiae mansionem habuerit extra curiam Ecclesiasticam non placitabit quamvis foris fecerit Ll. Edw. Conf. And thus as Church ground increased by the blind charity of those times so long Churchmen multiplied and the Canon inlarged from the persons of regulers to all Clergymen and from them to their Tenants and neighbours from thence to certain Spirituall or Ecclesiasticall crimes or scandals wherever they were found and wherever it touched it tooke and bound by Excommunication Ll. Edw. cap. 7. and upon significavit being first delivered to Satan they delivered him over to the sentence of the Law to be imprisoned If the offender be out of reach by the space of thirty and one daies he is outlawed so as there 's no way left to escape the Church fury CHAP. XXVIII Of the second Franches called the Marches FRanchises of the place were such as were limited within precincts of place annexed thereto and of this sort first were those of the borders of which those are the most ancient that bordered the Britons now called the marches of Wales in which was a peculiar government so far as concerned administration of justice for otherwise the subjects each of them submitted themselves to the service of their own Prince This was therefore a third different and mixt government agreed upon joyntly between the Britons and Saxons who after a long and burdensome warre wherein both peoples were well wearied by degrees became friends entered traffique and into the strictest societies by marriage Thus finding the sweetnesse of peace they provide against future occasions of strife that might arise in commerce by the justling of two Laws together agree in one law upon a certain number of Judges elected by common consent who were to see to the execution of these Laws as joynt assessors From these as I conceive arose those which are now called the Lords marchers Ll. Aetheld cap. 3. and were at the first twelve in number viz. six Saxons and six Britons It seemeth this form of government was first instituted by Aetheldred and by way of prescription or custome continueth till this day and as it was the birth of truce so for the future became both mother and nurse of peace between those two peoples like the twilight between the day and night untill both were brought under one head and by divine providence setled in a lasting day CHAP. XXIX Of County Palatines OF the same sort of Francheses were these which are called County Palatines which were certaine parcels of the Kingdome assigned to some particular person and their successors with royall power therein to execute all Laws established in nature of a Province holden of the Imperiall Crown and therefore the Kings Writ passed not within this precinct no more then in the Marches These were occasioned from the courage of the inhabitants that stoutly defended their liberties against the usurping power of those greater Kings that endeavoured to have the Dominion over the whose Heptarchy and not being easily overcome were admitted into composition of tributaries and therefore are found very ancient for Alfred put one of his Judges to death for passing sentence upon a malefactor for an offence done in a place where the Kings Writ passed not Miror cap. 5. Sec. 1. and the same authour reciting Another example of his justice against another of his Judges for putting one to death without president rendreth the Kings reason for that the King and his commissioners ought to determine such cases excepting those Lords in whose precinct the Kings Writ passeth not CHAP. XXX Of Francheses of the Person FRancheses of the person are such liberties annexed unto the person as are not absolute Lordships but onely tending thereto and limited within a Precinct but not annexed thereto and these are matters of profit rather then power as those of Bury St. Edmonds Doncaster Dorchester Circester all which were in the Saxon times Miror cap. 5. and these or some of them had juridicall power in cases of felonies and robberies arising within that precinct so as the delinquent was both inhabitant and taken within the same this was called Infangtheoff Infangtheoff and if upon fresh pursuit made by the right owner or possessor the delinquent was taken with the prey in his possession or as the old Dialect is Handhaben Backbearend Ll. Edw. cap. 26 Then was he carried immediately before the Coroner of that liberty and the Sakeber or party wronged made his proofe by witnesses and thereupon judgement forthwith passed without answer and execution immediately ensued Some Liberties had Outfangtheoff Outfangtheoff Bracton lib. 3. tract 2. cap. 35. Briton cap. 15. that is the triall and forfeiture of such delinquents being no inhabitants and yet taken within the liberty or inhabitants and not taken within the liberties but this triall was alwaies by Jury The antiquity of these Liberties are not obscurely manifested in their names and more clearly by the Saxon Laws and Acts Ll. Edw. cap. 21 for it s observed of Alfred that he seised a Franches of Infangtheoff because the Lord of that Franches would not send a felon taken within his liberty for a felony committed without the same to the gaole of the County Miror cap. 5. Sec. 1. as he ought to have done Other Liberties there were granted also by charter a taste whereof may be seen in one grant made by King Edgar to the Monastery of Glastenbury wherein was granted Sack Hamsockne Friderbrece Forstel Teme Flemone Ferdre Hundred Setene Sock Tholl Adae Horda Bufan Orderan Bene Orderan the
particular natures of each may be observed in the Glossaries All of them being allowed to the Crown by the Law and by the advice of the Councell of Lords granted over to these Grantees in nature of Deputies to the King to possesse both the power and profit thereto belonging CHAP. XXXI Of Manors NEverthelesse most of these liberties if not all of them were many times granted by Kings as appendent to Manors which were Francheses of smaller circuit being at the first portions of ground granted to some particular persons and by them subdivided and granted over to particular persons to hold of the Grantors by rents services and suit to one Court all being no other then the spoiles of warre and rewards of valour or other service These in their collective nature are called a Manor and by continuance of time become a kind of body politique In antiquity it s called Mansum from the mansion house although it is not of the Essence of a Manor Bracton fo 212 nor ought the words of Bracton to be construed according to the literall sence for the house may be destroyed and yet the Manor continue and the ground was granted in tenure before any house built thereupon The quantity of the ground thus given to hold by service was according to the pleasure of the Lord more or lesse and therefore might extend into divers Parishes as on the other part one Town might comprehend divers Manors Flera lib. 4. cap. 15. The Estate that was granted depended partly on the condition of the Grantee for some were servi or bondmen and their Estate was altogether at the will of the Lord as was also the benefit but the servants merit and the Lords benignity concurring with some conscience of Religion as the light grew more cleare abated the rigour of the tenure into that which we now call Copyhold Other Estates were made to the Free men which in the first times were onely for yeers albeit therein they were not niggardly for they sticked not at Leases for a hundred yeeres Ingulsus Croyl yet with a render of rent which in those daies was of Corn or other Victuall and thence the Leases so made were called Feormes or Farmes which word signifieth Victuals But times ensuing turned the victuall into money and terms of yeers to terms of life and inheritance retaining the rents and those called Quit rents or the rents of those persons that are acquitted or free Gloss 158. Ll. Saxon 16 17. Lamb. Gloss 348. Ll. Canut p. 1. cap. 69. But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a reliefe which were not left to the will of the Lord but was put in certainty in the very letter of the Law for according to each mans degree such was his reliefe or heriot But over and above all they reserved speciall service to be done by the person of the Tenant or some other by his procurement of which those that were their servi or villains were at the will of the Lord others had their particular service set down in their grants Knight-service These concerned either warre or peace the former was afterwards called the service of the Knight or Souldier the later the service of the Husbandman or Plough That of the Souldier was the more honourable and suitable to the old German trade Pigrum iners videtur sudore acquirere quod possis sanguine parare Tacitus and the worke was to defend the Kingdom the Lords person and honour and to this end he was ever to have his weapons in readinesse which gave name to the service and altered as times and customes changed This service by custome from a worke degenerated into the bare Title and became a dignity and the men named or rather entituled Milites and many of the Saxon charters were attested by men bearing that Title yet the service it selfe was farre more ancient and called servicium loricae of which sort also were the Custodes pagani that wore a Helmet a coat of Maile and a guilt Sword not unlike the old German way of calling forth of their Tirones to the war Tacitus Of this ranke some were more eminent then others for some bare the single title of Knight and it seemed served on foot Others served on horseback and were called Radknights or Knights riders as Bracton noteth Selden Spicil and these I take to be the Vavasours noted in the Conquerours Laws for that their reliefe is a Helmet a Cote of Maile a Shield a Speare and a horse Now for the maintaining of this service they had Lands and Tenements called Knights Fees which bound the owner to that service into whose hands soever they came to be done either by the person of the owner or other fit person by him procured and therefore were discharged from the payment of all taxes and tollage which was the Law of the Goths of old Co. Litlet 75. Bureus and remains in Sweden at this day The number of these Fees much increased so as in the Conquerours time they were above sixty thousand which was a mighty body for a small Island and brought much honour to the Nation But the profit arose from beneath Soccage tenure I mean from the soccage tenure or service of the Plough which in the first times was performed by those that were unfit for the service of the wars either being green and young or decrepet and aged Tacitus and sometimes by the women But after that the Saxon conquest was at a stop and that no more was to be gotten by blood men endeavoured to satisfie their desires by sweat and turned their Swords into Ploughshares and thus the Husbandry increased exceedingly and hath proved the best pillar of the Common-weale the nature of this tenure is fully set out by the Reporter Co. Litlet fo 86. Ll. Edw. c. 33. Spiceleg Ll. Edw. c. 33. nor can I adde thereto more then the Law of the Confessor concerning these men viz. that no man might trouble them but for their rent nor any Lord thrust them out of their Farme so long as they do their service and thus it appeareth that the service became in nature of a condition subsequent begetting an increaser of the Estate which by continuance wrought an inheritance and so the Title of Entry was turned wholly into distresses for service not performed yet the Lord was no looser thereby so long as Heriots Rents and Services accrewed unto him CHAP. XXXII Of Courts incident and united unto Manors BY grants made by Lords unto Tenants already noted the Lords had power by common right to call their Tenants before them and enquire concerning their payment of rents and performance of services which became Courts of constant appointment of which sort there were two one for the free men the other for the bond men and this brought forth an other service Court-leet
CHAP. LXXI Of the Peace WArre and peace are two births by severall venters and may like the day and night succeed but can never inherit each to other and for that cause they may claime to belong to one father and that one and the same power should act in both and yet it s no good maxime that he that is the chiefe Commander in warre ought to be the chiefe in the order of peace For it naturally befals that warre especially that which we call civill warre like some diseases in the body does rather breed ill humours then consume them and these must be purged by dieting the State and constant course of justice unto which the rugged waves of warre have little or no affinity if not enmity Neverthelesse the wisdome of our ancestors thought it most meet to keep their Kings in worke as well in time of peace as of war and therefore as they anciently referred the principall care thereof to the Lords who together with certaine select persons in every County did administer justice in severall iters or circuits so when Kings had once gotten the name of being chief in civill affaires as they had it in martiall they soon left the Lords behind them who also were willing enough with their own ease and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or commissioners thereto deputed And thus that peace which formerly passed under the titles of Pax Domini pax vice comitis it is pax Regni became by eminency swallowed up in that which was called the Kings peace and the Justices called the Kings Justices and himself flattered into that title of Fountaine of Justice which belongeth onely to him that is The Most High or Chiefe Law-giver The manner how this honourable care of the safety and peace of the Kingdome was imployed may be referred to a double consideration the one in execution of justice upon delinquents the other in preventing occasions of offence or delinquency by meanes whereof the publique peace might be endangered The first was acted diversly according to the present sence of affaires for what was at first done by the Princes in their circuits Tacitus with one hundred of the Commons called Comites and that done per pagos vicesque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chiefe Magistrates of Towns in their courts and Sheriffs in their Tornes as Judices stati for the ease of the people in matters of lesse moment I say I conceive it was in the Torne for I suppose no emergent court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve yeeres of age at the same 52 Hen. 3. Marlb cap. 25. and for the same cause it seemeth that one certaine Torne every yeere was holden for inquiries of homicide unto which all above twelve yeere of age were to come except Barons Clergy and women or otherwise all such had been bound to attendance on every Torne Neverthelesse the worke of the Tornes continued not to heare and determine as anciently they had done For in Henry the thirds time and formerly divers men had prisons to their owne use some as Palatines Mitor cap. 2. Sec. 9. other as Lords of Franchise and others by power and usurpation and had the benefit of all fines incident and by this meanes many were fined that deserved it not Mag. cart cap. 19. and some also that deserved worse to prevent which evill Henry the third tooke away that power of holding Crown-pleas Glocest cap. 8. West 1. cap. 3. And Edward the first tooke away their power to determine escapes and left them onely the power of inquiry and to certifie at the next comming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such coole pursuit Men were still ordinarily imprisoned and so continued oftentimes till the comming of the Justices itinerant For whereas in case of bloodshed the Writ de odio gratia was a remedy the other had no remedy but by procuring a Commission of Oyer and terminer which ordinarily was a cure worse then the hurt Stat. Wint. 13 Edw. 1. As a remedy hereof Edward the first found out the new way of making Justices of peace as may appeare by the Statute at Winton which law being purposely made for the conserving of the peace providing for penalty of crimes already committed as well as for the suppressing of future ordaineth that offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soone made way to resiant And before that Statute it seemeth the King had found out the way Coke Inst 4. p. 176 if that note be true which is left revived into memory by that honourable reporter which relating to the sixth yeere of Edward the first saith that then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Hen. 1. if I mistake not the sence of that clause in his laws concerning vagabonds he ordereth that they shall be carried Iusticiae quae praeest Hen. 1. cap. 58. although the language be not so Clerkly as to speake the sence out Now though their worke as yet was but in triall and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriffe was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriffs Torne and Lords Leets of that little remainder that was left them of judicatory power in matters that were against the peace and made their inquisitory power lesse regardfull and eased the Justices itinerant of much of their work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seemes were jealous of giving the power of determining those offences into any sudden hand To summe up then the first part as touching the punishment of offences against the peace the wheele is now in the turning the Leets and Tornes begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and terminer difused by the bringing in of a new order of Justices for the peace especially appointed And the Parliament as the supreame providors left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the Kings court after that the Common pleas were setled and confined to a certain place The preserving of the peace for the future