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
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
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
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
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
SR. NATHANIEL BACON From an Original at the Lord Viscount Grimslon's at Gorhambury Pubd. Augt. 10. 1795. by W. Richardson Castle St. Leicester Square AN HISTORICALL DISCOURSE OF THE UNIFORMITY OF THE GOVERNMENT OF ENGLAND THE FIRST PART From the first Times till the Reigne of Edward the third LONDON Printed for Mathew Walbancke at Grayes-Inne-Gate 1647. TO THE RIGHT HONOURABLE EDWARD Earle of Manchester Speaker of the House of Peeres AND THE HONOVRABLE WILLIAM LENTHALL Esqu Speaker of the House of Commons In PARLIAMENT MAy it please You to accept of this Sacrifice which I offer before Your Supreame Judicatory to the service of the times The fire is that of loyalty neither wilde nor common nor is the thing altogether forbidden and uncleane I confesse its maymed and unworthy yet it s the best that I have and in that regard whiles I now stand at Your Barre if You shall please to dismisse me without kneeling I shall in that posture doe the Houses the best service that I can elswhere NATH BACON To Consideration A Private debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conquerour so called first occasioned this Discourse Herein I have necessarily faln upon the Antiquity and Uniformity of the Government of this Nation It being cleared may also serve as an Idea for them to consider who doe mind the restitution of this shattered frame of policy For as in all orher cures so in that of a distempered government the originall constitution of the body is not lightly to be regarded and the contemplation of the proportion of the Manner of the Nation in a small modell brings no lesse furtherance to the right apprehension of the true nature thereof besides the delight then the perusing of a Map doth to the travailer after a long and tedious travaile I propound not this Discourse as a pattern drawn up to the life of the thing nor the thing it selfe as a Masterpiece for future ages for well I doe know that Common-weales in their minority doe want not onely perfection of strength and beauty but also of parts and proportion especially seeing that their full age attaineth no further growth then to a mixture of divers formes in one Ambition hath done much by discourse and action to bring forth Monarchy out of the wombe of notion but yet like that of the Philosophers stone the issue is but wind and the end misery to the undertakers and therfore more then probable it is that the utmost perfection of this nether worlds best government consists in the upholding of a due proportion of severall interests compounded into one temperature He that knoweth the secrets of all mens hearts doth know that my aime in this Discourse is neither at Scepter or Crosier nor after popular dotage but that Justice and Truth may moderate in all This is a Vessell I confesse ill and weakly built yet doth it adventure into the vast Ocean of your censures Gentlemen who are Antiquaries Lawyers and Historians any one of whom might have steered in this course much better then my selfe Had my owne credit been the fraite I must have expected nothing lesse then wracke and losse of all but the maine propose of this voyage being for discovery of the true nature of this government to common view I shall ever account your just censures and contradictions especially published with their grounds to be my most happy returne and as a Crown to this worke And that my labour hath its full reward if others taking advantage by mine imperfections shal beautifie England with a more perfect and lively caracter The Contents CHap. 1. Of the Britons and their government p. 1 Chap. 2 Concerning the conversion of the Britons unto the faith p. 3 Chap. 3. Of the entry of the Romans into Britaine and the state thereof during their continuance p. 5 Chap. 4. Of the entry of the Saxons and their manner of government p. 12 Chap. 5. Of Austins comming to the Saxons in England his entertainment and worke p. 17 Chap. 6. Of the imbodying of Prelacy into the government of this Kingdome p. 21 Chap. 7. Of Metropolitans in the Saxons time p. 23 Chap. 8. Of the Saxon Bishops p. 25 Chap. 9. Of the Saxon Presbyters p. 27 Chap. 10. Of inferiour Church-officers amongst the Saxons p. 28 Chap. 11. Of Church-mens maintenance amongst the Saxons p 29 Chap. 12. Of the severall precincts or jurisdictions of Church-governours amongst the Saxons p. 35 Chap. 13. Of the manner of the Prelates government of the Saxon Church p. 36 Chap. 14. Of causes Ecclesiasticall p. 39 Cha. 15. A briefe censure of the Saxon Prelaticall Church government p. 43 Chap. 16. Of the Saxons Common-weale and the government thereof and first of the King p. 46 Chap. 17. Of the Saxon Nobility p. 53 Chap. 18. Of the Freemen amongst the Saxons p. 55 Chap. 19. Of the villains amongst the Saxons p. 56 Chap. 20. Of the grand Councell amongst the Saxons called the Micklemote p. 57 Chap. 21. Of the Councell of Lords p. 62 Chap. 22. Of the manner of the Saxon government in the time of warre p. 63 Chap. 23. Of the government of the Saxon Kingdome in the times of peace and first of the division of the Kingdome into shires and their officers p. 65 Chap. 24. Of the County court and Sheriffs Torne p. 66 Chap. 25. Of the division of the County into Hundreds and the Officers and Court thereto belonging p. 68 Chap. 26. Of the division of the Hundreds into Decennaries p. 70 Chap. 27. Of Franchises and first of the Church Franchise p. 71 Chap. 28. Of the second franchise called the Marches p. 72 Chap. 29. Of County Palatines p. 73 Chap. 30. Of Franchises of the person ibid. Chap. 31. Of Mannors p. 75 Ch. 32. Of Courts incident united unto Mannors p. 77 Chap. 33. Of Townships and their Markets p. 79 Chap. 34. Of the Forrests p. 82 Chap. 35. Concerning Iudges in Courts of justice p. 84 Chap. 36. Of the proceedings in judicature by Indictment Appeale Presentment and Action p. 85 Chap. 37. Of the severall manners of extraordinary triall by Torture Ordeale Compurgators and Battaile p. 88 Chap. 38. Of the ordinary manner of triall amongst the Saxons by Inquest p. 91 Chap. 39. Of passing judgement and execution p. 94 Chap. 40. Of the penall Laws amongst the Saxons p. 96 Chap. 41. Of the Laws of property of Lands and Goods and the manner of their conveyance p. 102 Chap. 42. Of the times of Law and vacancy p. 110 Chap. 43. An Epilogue to the Saxon government p. 111 CHap. 44. Of the Norman entrance p. 113 Chap. 45. Of the title of the Norman Kings to the English crowne that it was by election p. 115 Chap. 46. That the government of the Normans proceeded upon the Saxon principles And first of Parliaments p. 120 Chap. 47. Of the Franchise of the Church in the Norman times p. 123
might be founded rather upon an errour in judgement then savagenesse of nature Much lesse cause doth appeare of any cry of oppression upon inferiours but rather against that as the multitude of Kings or Lords doe manifestly witnesse who being observed in the time of Julius Caesar continued in Tiberius his time and afterwards untill in the reigne of Claudius t is said that Caractacus ruled over many Nations for its a certaine maxime that though great Nations may be upholden by power small Territories must be maintained by justice without which the doore will be soon set open to the next passenger that comes especially where the people are bent to war as these were and therein had attained such exquisite perfection of skill in Chariot service as must needs convince us of their much experience against themselves in regard that to other people it was scarce known no nor yet to Caesar himselfe that had been practised in the wars of all Nations And this is all that I can produce out of story touching the government of Britaine before the entry of that light that lightneth every one that commeth into the world CHAP. II. Concerning the conversion of the Britons unto the Faith IT was long before the Sonne of God was inwombed and whiles as yet Providence seemed to close onely with the Jewish Nation and to hover over it as a choice picked place from all the earth that with a gracious eye surveying the forsaken condition of other Nations it glanced upon this Island both thoughts and words reflected on Isles Isles of the Gentiles Isa 42.4.51.5.60.9.66.19 Isles afar off as if amongst them the Lord of all the earth had found out one place that should be to him as the Gemme of the ring of this Terrestriall Globe and if the waies of future providence may be looked upon as a glosse of those Prophesies we must confesse that this Island was conceived in the wombe thereof long before it was manifested to the world To recover the forgotten waies of past providence is no lesse difficult then to search out the hidden bowels of future promises and therefore I shall not busie my selfe to finde out the particular instruments that brought Gods presence into this dark corner but onely glance at the time and manner that it may appeare we were not forgotten nor yet last or least in mind at that time of the dispensation of this grace unto all men I dare not instance as Gildas the certaine time of six yeeres yet I may say that no sooner was the Scepter departed from Judah but with a swift pace both it and the Lawgiver came hither like an Arrow flying through other Countries but sticking with a ne plus ultra in this Island then a People rather then a Common-weale as if we were the onely white that then was in Gods aime It s probable in the highest degree that the worke was done within the first Century and very nigh about the Apostolike times for that in the second Century Britaine was a Church of Fame and known to the Fathers that dwelt afarre off even to Tertullian and Origen and in a short time had out-reached the Roman confines in that Island which had cost them above two hundred yeeres travaile and was grown to the state of the first Christian Kingdome that ever was Tertul. adv Judaeos unto which if we shall allow time for the gathering and growth thereof unto this royall pitch proportionable to the halfe of that which afterward was spent in the like worke upon the Saxon and Danish Kings we must in reason conclude that the worke was first ordered by Apostolicall direction or some of their emissaries Customes also do not obscurely declare ages For before that Pius Bishop of Rome began to speake in the big language of Decrees it was indifferent to keepe Easter either upon the day observed by the Roman Church or on the day according to the Jewes custome and although the Roman Church began within fifty yeeres after the death of John the Evangelist Platina de vit Eleuthe to stickle to impose their custome upon other Churches yet the Church of Britaine conformed not to that course by the space of five hundred yeeres after that time which reflecteth probability Beda l. 3. cap. 25. that the Church was there setled in times of indifferency not by Roman order but by some other purposed messenger The manner yet is more remarkable for that not onely Principalities and Powers and Spirituall wickednesses in high places which are but stumbling-blocks but also naturall wisdome of the Druides who were masters of the consciences of the Britons and their high conceipt of their excellency above the ordinary straine of men and unto which the Crosse of Christ is meere foolishnesse and above all the deep obligement of the people unto these their Rabbies in a devotion beyond the reach of other Nations all these I say stood in the way and rendred the people more uncapable of any new light But when the time fore-set is fully come all mountaines are laid low and double-folded doores fly open and this Conquerour of all Nations attempts Britaine not in the reare nor by undermining but assailes them in their full strength presents in a cleare Sunshine that one true Sacrifice of God man at the appearing whereof their shadowes of many Sacrifices of mans flesh flie away And thus those Druides that formerly had dominion of the Britons faith Origen hom 4. Ezek. become now to be helpers of their joy and are become the leaders of the blind people in a better way and unto a better hope and held forth that light which through Gods mercy hath continued in this Island ever since through many stormes and darke mists of time untill the present noon-day CHAP. III. Of the entry of the Romans into Britaine and the state thereof during their continuance THis conversion of the Druides was but the first step to that which followed for the Decree was more full of grace then to make this Isle to be onely as an Inne for him to whom it was formerly given for a possession Ps 2.8 The Romans are called in to the worke under whose Iron yoke God had subdued all Nations thereby more speedily to bring to passe his own conquest both of that one head and all its members The first Caesar had entred Britaine before the Incarnation and having seen and saluted it and played his prize Tacit. returned with the fame onely of conquest of some few Lordships neighbouring to the Belgicke shore and so it continued correspondent to the Romans or rather forgotten of them till the time of Claudius the Emperour Vit. Agric. who being at leasure to bethink him of the Britons tribute or rather aspiring to honour by a way formerly untroden by his Ancestors first setled Colonies in Britaine and brought it into the forme of a Province and ingaged his successors in a continuall war to perfect
the whole Nation and the King amongst the rest as the Priest that many times rendred the answer or sentence of that Oracle in his own sence and had it confirmed to him by an oath se judicium rectum in Regno facturum justiciam per concilium procerum regni sui tenturum Ll. Edw. cap. 16. so as though he was the first in view yet the Councell of Lords was the first in nature and the Cynosure to direct his tongue and actions From this fountaine issued also streams of judicature into all parts by Judges itinerant under the Kings Commission to reforme errours punish defaults in the ordinary rurall judicatories Miror cap. 5. Sec. 1. ca. 1. Sec. 3. and to dissolve hard and knotty cases and these were occasioned at the instance of the party and Alfred whose birth this was sent them forth in way of Association with the Sheriff Lord of the fee or other ordinary Magistrate CHAP. XXXVI Of the proceedings in Judicature by Indictment Appeale Praesentment and Action FOr the proceedings in course the Saxons were wont to begin with matters belonging to the Church and afterward to secular causes In which if the matters were criminall the most ancient way of proceeding was by appeale of the party complaining but afterwards in cases that concerned dammage injury or violence done to the body of a man or his estate the King was found to be therein prejudiced besides the prejudice immediately done to the subject for a man disabled in body or estate is disabled to serve the King and publique Indictment and upon this ground a way was found out to punish the offender by indictment besides the satisfaction done to the party wronged The proceedings against such delinquents were by attachment of the party Lambert Ll. Inae 15. who thereupon gave pledges for his appearance If the party could not be found a fugam fecit was returned and that was a conviction in Law and pursuit was made after the party by huy and cry If he was thereby taken the ancient way was that of Halifax law but in later times he was imprisoned Ll. Inae Lam fo 7. Ll. Alured cap. 6. Miror c. 2. Sec. 24. Ll. Edw. cap. 4. Miror p. 255. Gloss 335. Miror cap. 5. Sec. 9 10. Ll. Edw. cap. 7. Ll. Canut cap. 45. Miror cap. 2. Sec. 22. or admitted to baile if the offences were baileable and if the party bailed made default or did not abide the triall his baile suffered as principall If no baile could be procured the delinquent was imprisoned till he was legally acquitted but this imprisonment was onely in nature of a restraint If the delinquent was found upon the huy and cry and would not yeeld himselfe he was in repute a common enemy and as a wolfe any man might kill him as the Law was also the same in case of Utlary At the time of tryall if at the Kings suit the delinquent was indicted in this manner by any party present I D.C. do say for the King that I. S. is defamed by good men that he upon day of c. into the house and goods of did cast fire and the same did burn or if it were for bloodshed with a Sword did strike and wound him in the left arme and that this was done feloniously or if the case required trayterously and if I. S. deny the same I will for the King prove the matter against him as the King ought to doe that is to say Appeale Miror cap. 2. Sec. 15â— by witnesses and twelve men But if the complaint was at the suit of the party then the prosecutor sued him upon Appeale in manner following I. C. appealeth D. H. here present for that E father brother sonne or Vnkle according as the case was to I.C. being in the peace of God and of our Soveraigne Lord the King in the dwelling house of E. at c. the said D.H. upon the day of in the yeere of with a Sword made a wound of two inches long and six inches deep in the left pappe of the body of the said E. whereof he died and this was done feloniously and of malice forethought And if the said D.H. shall deny the same the said I.C. is ready to prove the same against him by his body or as a Monk woman or Clerk behooveth to prove the same that is by Champion for neither Monke woman nor Clerke was by Law to justifie by battaile in their own person The severall causes of appeale and indictment may be found in the Law bookes to whom I referre the Reader it not being within the compasse of this discourse to fall upon the particulars I shall onely observe the difference between Indictments former and later and between them and appeales viz. that appeales are positive accusations in the name of the prosecutor of the fact done by the party appealed whereas indictments were onely a publication or affirmation of the fame of a fact done by the party indicted and wherein not guilty pleaded served onely as in nature of a Quere to usher in the votes of the free men Concerning the fact secondly the difference between former Indictments from these in these daies consists in this that the ancient Indictments were in the name of one man those of the later sort are in the name of the Jury and the former were onely of a fame the later of the fact Miror cap. 2. Sec. 23. Presentment A third way of bringing controversies unto judgement concerned onely such matters as were of lesse consequence and these were introduced by way of presentment in the name or behalfe of the King in nature of positive accuse of one for a crime first laid down generally and then asserted by a particular fact in this manner I say for our Soveraigne Lord the King that H. here is perjured and hath broken faith against the King because whereas H. is or was Chancellor of the King and was sworn that he would not sell right or any remediall Writ to any one yet upon the day of c. he sold to B. a Writ of Attaint and would not grant the same under halfe a Marke so as the difference between an Indictment and Presentment in those daies was onely in the degree of crime for which the party delinquent was accused and in the manner of conclusion of the Presentment which was without averment The last way of trials concerns such offences that exceed not the nature of trespasse done to a mans person or his goods Miror cap. 2. Sec. 24. Action and this was by way of Action and it was to obtaine recompence for dammage sustained Now because the former were called personall trespasses the Processe was by attachment of the person who thereupon put in baile or else his person was secured by imprisonment till triall and satisfaction made but in the later that concerned the realty Ll. Aetheldr cap. 20. Ll. Canut c. 10
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
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
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
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
of the validity of the will in its generall nature it was transmitted to the Ecclesiasticall court CHAP. LXIII Of the Militia of this Kingdome during the reigne of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that frō the Norman times the power of the Militia rested upon two principles the one the allegiance for the common defence of the Kings person and honour and Kingdome and in this case the King had the power to levy the force of the Kingdome neverthelesse the cause was still under the cognisance of the great councell so farre as to agree or disavow the warre if they saw cause as appeared in the defections of the Barons in the quarrell between King Steven and the Empresse and between King John and his Barrons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Armes either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extreame prejudice and the Kingdoms dammage Nor did the former principle oversway the latter although it might seem more considerable but onely in the times of civill peace when the Lords were quiet and the people well conceited of the Kings aimes in reference to the publique which happinesse it was Henry the seconds lot to enjoy for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate not onely gained honour abroad but much more amongst his own people at home who saw plainly that he was for forraigne imployment of honour to the Kingdome and not onely contented with what he had in England but imbarked together with the Laity against the growing power of the Clergy for the defence and honour of the priviledges of the Crown wherein also the liberties of the people were included They therefore were secure in the Kings way and suffered themselves to be engaged unto the Crown further then they or their ancestors formerly had been out of pretence of sudden extreame occasions of the Kingdome that would not be matched with the ordinary course of defence For the King finding by former experience that the way of Tenures was too lame a supply for his acquests abroad and that it had proved little better then a broken reed to the Crown in case of dispute with the people aimed at a further reach then the Lords or Commons foresaw and having learned a tricke in France brought it over although it was neither the first nor last trick that England learned to their cost from France which was a new way of leavying of men and Armes for the warre Hoveden 1181. by assessing upon every Knights fee and upon every free man of the vallew of sixteen Marks yeerly their certaine Armes and upon every free man of ten Marks yeerely valew their certaine Armes and upon every Burgesse and free man of an inferiour valew their certaine Armes 2. That these should be ready prepared against a certaine day 3. That they should be kept and maintained from time to time in the Kings service and at his command 4. That they should not be lent pledged sold or given away 5. That in case of death they should descend to the heire who if under age should finde a man to serve in his stead 6. That in case the owner were able he should be ready at a certaine day with his Armes for the service of the King ad fidem Domini Regis Regni sui 7. That unto this every man should be sworn I call this a new way of levying of Armes and men not but that formerly other free men and Burgesses found Armes albeit they held not by Knight service for it was so ordained by the Conquerours laws formerly used but now the King thrust in two clauses besides the altering of the Armes the one concerning the oath whereby all men became bound the other concerning the raising and ordering of men and armes which here seems to be referred to the King onely and in his service and this I grant may imply much in common capacity viz. that all the power of the Militia is in Henry the second But this tricke catched not the people according to the Kings meaning for the words ad fidem Regis Regni still left a muse for the people to escape if they were called out against their duty to the Kingdome and taught the doctrine which is not yet repealed viz. That what is not according to their faith to the Kingdome is not according to their faith to the King and therefore they could finde in their hearts sometimes to sit still at home when they were called forth to warre as may appeare in one passage in the daies of King John who had gathered together an Army for the opposing of forraine power at such time as the Pope had done his worst against him and the whole Kingdome which Army was of such considerable strength as I believe none since the conquest to this day exceeded or paraleld it but the Kings mean submission to the Popes Legate so distasted the Nobles and people as they left him to his own shifts and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthned himselfe against the Nobles yet the Lords comming from London brought on the sudden such a party as the King was not able to withstand and so he came off with that conclusion made at Renny meade which though in it selfe was honourable yet lost the King so much the more because it was rather gained from him then made by him CHAP. LXIV Of the Government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government ONe hundred and ten yeeres more I have together taken up to adde a period to this first part of discourse concerning English government principally because one spirit of arbitrary rule from King Iohn seemeth to breathe throughout the whole and therewith did expire The first that presents himselfe is Henry the third begotten by King Iohn when he was in the very first enterprize of oppression that occasioned the first Barons bloody warres and which this King was so miserable as to continue for the greatest part of his life and reigne and yet so happy as to see it ended about four yeeres before he died Although the soule be not ingendered from the parent yet the temperature of the body of the child doth sometimes so attemper the motion of the soule that there is in the child the very image of the fathers mind and this Henry the third lively expressed being so like unto his father Iohn in his worst course as if his fathers own spirit
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
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
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
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
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
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