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
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
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
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
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
or no power by the Canon that was not under their controle neither in admission or deprivation of Presbyters or others determining of any cause Concil Brit. 260 263. nor passing sentence of excommunication and this could not but much hinder the hasty growth of Antichrists power in this Kingdome nor could it ever be compleated so long as the Synods had the chiefe power Neverthelesse the inthralled spirits of the Clergy and terror of the Papall thunderbolt in continuance of time surmounted this difficulty and Synods became so tame and easily led as if there had been but one Divell to rule amongst them all For if any quick eye or active spirit did but begin to peep or stir the Legate e latere soon reduced him into ranke and kept all in awe with a sub poena of unknown danger A third errour was the allowing of peculiars and exemptions of Religious Houses from ordinary jurisdiction and this was an errour in the first concoction a block in the way of Prelacy and a clogge to keepe it down This errour was soon felt and was occasion of much mutiny in the body Ecclesiasticall but exceeding profitable for Rome not onely in point of Revenue by the multitude of appeales but especially in maintaining a party for the Roman See in case the Prelacy of England should stumble at the Supremacy of Rome Otherwise it seemed like a wenne upon the body rather then any homogene member and without which certainly the English Prelacy had thriven much better and the Roman chaire much worse In all which regards I must conclude that the Prelaticall government in England was as yet like a young Bear not fully licked but left to be made compleat by time and observation CHAP. XVI Of the Saxon Common-weale and the government thereof and first of the King HAving already treated of the Saxon Church in order I am now come to the Republique which in all probability will be expected to be suitable to their originall in Germany whereunto having relation I shall first fall upon the persons and degrees abstractively then in their assemblies and lastly of their Laws and customes The Saxons in their first state in Germany were distributed into foure classes viz. the Nobles the free-men the manumitted persons and the bond-men Under the Nobility and from them arose one that was called a King of whom I shall speake a part the two last differed onely in the bare liberty of their persons and therefore may be comprehended under one head as they were in their originall A King amongst the Saxons in probability was anciently a Commander in the field an Officer pro tempore and no necessary member in the constitution of their state for in time of peace when the Common-wealth was it selfe the executive power of the Law rested much in the Nobility but in times of warre and in publique distractions they chose a Generall and all sware obedience unto him during the war Witikum gest Saxon. lib. 1. it being finished the Generall laid down his command and every one lived aequo jure propria contentus potestate But in their transmigration into Britaine the continuance of the war causing the continuall use of the General made that Place or Office to settle and swell into the condition of a King and so he that was formerly Dux became Rex there being no more difference in the nature of their places then in the sence of the words the one signifying to lead the other to governe so as he that formerly was a servant for the occasion afterwards became a servant for life yet clothed with Majesty like some bitter Pill covered with Gold to make the service better tasted Nor was the place more desirable if duly considered For first his Title rested upon the good opinion of the Free-men and it seemeth to be one of the best Gems of the Crown for that he was thereby declared to be most worthy of the love and service of the people Yet was the ground of their election so uncertaine as a man might imagine that sometimes there appeared more of the will then of the judgement in it that it might be said to be the more free for they neither excluded women nor children further then present occasions lead them The West-Saxons deposed Seburg their Queen because they would not fight under a woman M. Westm An. 672. M. Westm An. 912 919. Tacit. Cragius but the Mercians obeyed Elfled their Queen and under her fought valiantly with good successe against the Danes imitating the custome of the Sitones or Norwegians in Germany as they might borrow it from the Lacedemonians A custome it was so much the more honourable by how much it demonstrateth freedome and that the worth of the people rested not so much in the head as it s diffused through the whole body And it seemeth to runne in the blood of an English man even to this day to be as brave under a single Queen as under the most valiant King if not much more and still to strive to be as famous for the defence of Majesty whereever they set it as the Britons were of old Nor were they different in their respect of age from that of the sex for though after the death of Edmond Edwin or Edgar were to have succeeded in the Crown by the right of descent yet the States would not admit them because they were minors but the Mercians admitted Kenelme a child of seven yeeres old to be their King They likewise excluded not bastards till the Clergy interposed for they having wound themselves into the Councels of the Kingdome procured a constitution to back them in the election of Kings Legitime c. Let the Kings be legally chosen by Priests and Elders and not such as are begotten by adultery or incest Which constitution was made in a Legatine councell Mag. cent 8. cap. 9. An. 747. and confirmed by great Offa The rule of their election was the same with that in Germany viz. to elect the chiefest out of the chiefest family that is Tacitus the chiefest for worth not by descent yet the honour they bare to their brave Kings who had deserved well made some to honour their posterity and to chuse their eldest after their decease and so in time Crownes were taken up by Custome and election often times subsequent was accounted but a ceremony unlesse the people will dispute the point Secondly this election was qualified under a stipulation or covenant wherein both Prince and people were mutually bound each to other the people to defend their King which the Historian saith was praecipuum Sacramentum Tacitus and the Prince to the people to be no other then the influence of the Law sutable to that saying of Aethelstan the Saxon King Concil Brit. p 397. seeing I according to your Law allow you what is yours doe you so with me as if the Law were the sole umpire between King and people and unto
the Clergymens then his Richard was yet a greater burden his reigne was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his father be blotted out but it was more troublesome to the people because it cost so much treasure was mannaged by such ill governours except the Archbishop of Canterbury and was unsuccesfull in most of his undertakings yet never invaded the liberties of the Commons by any face of prerogative But what wanted in him was made compleat and running over in his successor John who to speake in the most moderate sence of his government being given over to himselfe when he was not himselfe robbed the Lords of their authority bereaved the Church of its rights trode under foot the liberties of the people wasted his own Prerogative and having brought all things into dispaire comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regaine and Iohn could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gaine where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant government such as all men might learne which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in government is the law and the execution the latter being the life of the former and that of the Common-weale I say not that the law was augmented in the body of it or that the execution had a freer course then in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousnesse for the first whereof we are beholding to Glanvile in Henry the seconds time and for the latter to King Iohn or rather the Barons in his time in the publishing of the grand Charter or an enumeration of the liberties or customes of the people derived from the Saxons revived continued and confirmed by the Normans and their successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King Iohn soon repented of his oath the bond of his consent and to heale the wound got the Popes pardon and blessing thereupon so easie a thing it was for a sonne of the Roman Church to passe for a good catholique in an unrighteous way The execution of the Law was done in severall Courts according to the severall kinds of affaires whereof some concerned matters of crime penalty and this touched the Kings honour and safety of the persons of himselfe and his subjects and therefore are said to be contra coronam dignitatem c. The second sort concerne the profits of the Crown or treasure of the Kingdome The third concerne the safety of the estates of the people These three works were appointed unto three severall Courts who had their severall Judges especially appointed to that worke Originally they were in one viz. in the supream Court of Judicature the court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of severall men that were men of skil in such affaires and yet retained the Supremacy in all such causes still And because that which concerned the publique treasure was of more publique regard then the other the deputation thereof was cōmitted probably to some of their own members Gloss who in those daies were Barons of the Realm and afterwards retained the title but not the degree and therefore were called for distinction sake Barons of the Exchequer The particular times of these deputations appeare not clearly out of any monument of antiquity neverthelesse it s cleare to me that it was before Henry the seconds time as well because Henry the first had his Judex fiscalis Ll. Hen. 1. c 24. as Glanvile so frequently toucheth upon the Kings court of pleas which cannot be intended at the court of Lords for that in those daies was never summoned but in time of Parliament or some other speciall occasion but more principally because the Historian speaking of the Judges itinerant reciteth some to be of the common pleas Hoveden which sheweth that there was in those daies a distinction of jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advise of the Parliament after that the grand councell of Lords was laid aside by Kings and a Privy councell taken up unto whom could not regularly belong any juridicall power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime title of chiefe Justice who then was called Lord chiefe Justice of England and whose Office was much of the nature of the Kings Lieutenant in all causes and places as well in warre as peace and sometimes was appointed to one part of the Kingdome and by reason thereof had the name onely of that part and some other of the other parts The greatnesse of this office was such as the man for necessity of state was continually resident at the Court and by this means the Kings court was much attended by all sorts of persons which proved in after times as grievous to the King as it was burdensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergy as were also the under Officers of those courts for those times were Romes houre and the power of darknesse Other Courts also were in the countrey and were Vicontiel or Cours of Sheriffs and Lords of Hundreds and corporations and Lordships as formerly and these were setled in some place Hoveden but others there were which werr itinerant over which certaine Judges presided which were elected by the grand councell of Lords and sent by commission from King Henry the second throughout the Kingdome then devided into six circuits unto each of which was assigned three Justices so as the whole number of Justices then was eighteen The Office was before the comming of the Saxons over hither but the assignation was new as also was their oath for they were sworne But the number continued not long for within foure yeeres the King redivided the land into foure circuits and unto each circuit assigned five Justices making in the whole the number of twenty and one Justices for the Northern circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdome Hoveden 337. Ibid. 445. Neither yet did the first commission continue so long