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
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
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
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
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
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
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
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