cases and of the Writ de cautione admittenda Persons cited and making default may be interdicted and the King's Officer shall compel him to obey If the King's Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the Process in the Spiritual Courts was to be regulated according to Law. Nor did it lie in the power of such Courts to order their own way or scatter the censure of Excommunication according to their own liking This together with all those that forego the Arch-bishop upon his repentance absolutely withstood although he had twice consented and once subscribed to them having also received some kind of allowance thereof even from Rome it self Clergy-men holding per Baroniam shall do such services as to their Tenure belong and shall assist in the King's Court till judgement of Life or Member Two things are hereby manifest First that notwithstanding the Conquerour's Law formerly mentioned Bishops still sate as Judges in the King's Courts as they had done in the Saxon times but it was upon causes that merely concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spiritual-Courts and not the Clergie out of the Lay-Courts Secondly that the Clergie especially those of the greater sort questioned their services due by Tenure as if they intended neither Lord nor King but the Pope onely Doubtless the use of Tenures in those times was of infinite consequence to the peace of the Kingdom and government of these Kings whenas by these principally not onely all degrees were united and made dependant from the Lord paramount to the Tenant peravale but especially the Clergie with the Laity upon the Crown without which a strange metamorphosis in Government must needs have ensued beyond the shape of any reasonable conceit the one half almost of the people in England being absolutely put under the Dominion of a foreign power Sanctuary shall not protect forfeited Goods nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened without License It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without License or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Church-men to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into a Monastery without the Lord's consent Upon the same ground with the former for the Lord had not onely right in his Tenant which could not be aliened without his consent but also a right in his Tenant's Children in regard they in time might by descent become his Tenants and so lie under the same ground of Law For although this be no alienation by legal purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affairs These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last But their Captain-Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Sampson-like effected more than his life For the main thing of all the rest the Pope gained to be friends for the loss of so great a stickler in the Church-affairs as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishops espied a muse through which all the game of the Popedom might soon escape and the Pope be left to sit upon Thorns in regard of his Authority here in England For let the Metropolitan of all England be a sworn servant to the Metropolitan of the Christian World and the rest of the English Bishops not concur it will make the Tripple Crown at the best but double Alexander the Pope therefore meaned not to trust their fair natures any longer but puts an Oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceal their Counsels 4. To aid the Roman Papacy against all persons 5. To assist the Roman Legat. 6. To come to Synods upon Summons 7. To visit Rome once every three years 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their Estates Bodies and Souls unto her service that which remains the King of England may keep And well it was that it was not worse considering that the King had vowed perpetual enmity against the Pope But he wisely perceiving that the King's spirit would up again having thus gotten the main battle durst not adventure upon the King's rear lest he might turn head and so he let the King come off with the loss of Appeals and an order to annul the customs that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to lose the scare-crow-power of Rome yet it befel him as many great spirits that favour prevails more with them than fear or power For being towards his last times worn with grief at his unnatural Sons a shadow of the kindness of the Pope's Legat unto him won that which the Clergy could never formerly wrest from him in these particulars granted by him that No Clerk shall answer in the Lay-courts but onely for the Forest and their Lay-fee This savoured more of courtesie than Justice and therefore we find not that the same did thrive nor did continue long in force as a Law although the claim thereof lasted Vacancies shall not be holden in the King's hand above one year unless upon case of necessity This seemeth to pass somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole Judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the King's Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a Hundred murthers To prevent this evil the King loth to enter the List with the Clergy about too many matters let loose the Law of feud for the friends of the party slain to take revenge and this cost the bloud of many Clerks The Laity haply being more industrious therein than otherwise they would have been
allowed of by Offa the great in a legatine Synod And thus highly advanced Bishops are now consecrated to any work and make every thing Sacred Oaths taken before them are of highest moment and therefore the trial of Crimes before them and the acknowledgment of Deeds of conveyance in their presence are without control Their custody is a sufficient Seal to all weights and measures which they committed to some Clerk whom they trusted and at this day though a Lay-person beareth title of Clerk of the Market And although anciently they might not interesse secularibus yet afterwards it became a part of their Office to assist Judges in secular causes to see that justice be not wronged and they had the sole cognizance of all causes criminal belonging to the Clergy their Tenants or Servants and in their Synods their power reached to such Crimes of Lay-men as came within the savour of the Canon though it were but in the cold scent as the Laws of Athelstane and other his successors sufficiently set forth And thus dressed up let them stand aside that room may be made for their Train CHAP IX Of the Saxon Presbyters THese follow their Lords the Bishops as fast as they can hunt for being of the same Order as the less proud times acknowledged they would not be under foot and the others above the top True it is that the Bishops loaded them with Canons and kept them under by hard work under the trick of Canonical obedience yet it was no part of their meaning to suffer them to become vile in the eyes of the Laity for they knew well enough that the Presbyters must be their bridles to lead and curb the people and their eyes to see whether the winds from below blew fair or foul for them whose consciences already told them that they merited not much favour from the people They see it therefore necessary to inhaunce the price of a Presbyter somewhat within the alloye of a Bishop to the end that the Presbytery may not be too like the Babylonian Image whose head was Gold and feet of Iron and Clay A Presbyter therefore they will have to be of equal Repute with a Baron and his person shall be in Repute so Sacred as that all wrong done thereunto must be doubly punished with satisfaction to the party and to the Church His Credit or Fame must not be touched by Lay-testimony Nor is he to be judged by any Secular power but to be honoured as an Angel. Such are these instruments of the Bishops Government and these are put as a glass between the Bishops and people and could represent the people to the Bishop black or white and the Bishop to them in like manner as they pleased and so under fear of the Bishops curse kept the people in awe to themselves and it CHAP. X. Of other inferiour Church-Officers amongst the Saxons THey had other inferiour degrees of the Clergy which because they are meerly subservient and not considerable in Church-government I shall only touch upon them The first are called Deacons which were attending upon the Presbyters to bring the offerings to the Altar to read the Gospel to Baptize and Administer the Lords Supper Then follow the Sub-deacons who used to attend the Deacons with consecrated Vessels and other necessaries for the Administring of the Sacrements Next these Acolites which waited with the Trapers ready lighted while the Gospel was read and the Sacrament consecrated Then Exorcists that served to disposses such as are possessed by the Devil and office as it may seem of little use yet very ancient for they are found at the Synod at Arles which was within Three Hundred years after Christ's death Lecturers came next who served to read and expound and these were of use when Churches began to multiply and Presbyters grew idle Lastly Ostiaries which used to ring the bells and open and shut the Church-doors These are the several ranks of Church-officers being Seven in number for Bishops and Presbyters make but one and might be as thus ordered the Seven heads of the Beast whereon the woman sitteth and with much ado make up a kind of Church-service somewhat like a great Hoe in a ship-yard at the stirring of a little log and are nevertheless well paid for their labour CHAP. XI Of Church-mens maintenance amongst the Saxons I Take no notice in this account of the Abbots and Priors and other such Religious men as they were then called nor can I pass them amongst the number of Church-governours or Officers being no other than as a sixth finger or an excrescence that the body might well spare and yet they sucked up much of the blood and spirits thereof But as touching the maintenance of those formerly mentioned who had a constant influence in the Government of the affairs of the publick worship of God and regard of salvation of the Souls of the people I say their maintenance was diversly raised and as diversly imployed First through the bounty of Kings and great men Lands and Mannors were bestowed upon the Metropolitan and Bishops in free Alms and from these arose the maintenance that ascended up in abundance to the higher Region of the Clergy but came again in thin dews scarce enough to keep the Husbandmans hope from despair otherwise had not the Prelates so soon mounted up into the chair of Pomp and State as they did I say these are given in free Alms or more plainly as Alms free from all service and this was doubtless soon thought upon for it was formerly in president with their Heathenish-Priests and Druids as Caesar noteth that they had omnium rerum immunitatem yet with the exception of works of publick charity and safety such as are maintaining of High-ways repairing of Bridges and fortifying of Castles c. and hereof the presidents are numerous The work whereto this wages was appointed was the worship of God and increase of Religion and thus not only many of the Kings Subjects were exempted from publick service but much of the Revenue of the Kingdom formerly imployed for the publick safety became acquitted from the service of the Field to the service of the Bead the strength of the Kingdom much impaired and the Subjects much grieved who in those early times saw the inconveniences and complained thereof to their Kings but could not prevail This was the vintage of Kings and great men but the gleanings of the people were much more plentiful for besides the Courts which swelled as the irregularities of those times increased and thereby enriched the Cofers of that covetous Generation the greatest part whereof ought by the Canon to go to the publick the best part of the setled maintenance especially of the inferiour degrees arose from the good affections of the people who were either forward to offer or easily perswaded to forgo
demise he died a death meet to be for ever blotted out of the thoughts of all Subjects but to be had in everlasting remembrance of all Kings For if a Kingdom or Parliament misleads the King at the worst he is but misled by his Council but if he be drawn aside by favorites he must thank his own lust in the one he hath but the least share in the burthen in the other he must bear 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 weakness or power of these Kings of whom the first and last had little to ground upon but their own will and the other I mean Edward the first had more wisdom and power but was otherwise distracted by foraign and more urgent employments so as the work fainted before it came to its full period The contest was between the King and Barons who till those days were rather the great and richer sort of men than Peers although they also were of the number I am not so sharp-sighted as to reach the utmost intentions of the Lords but their pretences are to such publick nature as it is plain that if their private interest was wrapped up therein they were inseparable And I shall never quarrel the Lords aim at private respects whenas it is plain the publick was so importantly concerned and yet I will not justiâ—ie all that I find written concerning their Words and Actions The Speech of the E. of Cornwal to his his elder Brother and King Henry the Third I will neither render up my Castle nor depart the Kingdom but by the judgment of the Peers and of Simon the E. of Leicester to the same King that he lyed and were he not a King the Earl would make him repent his word and of the Lords that they would drive the King out of his Kingdom and elect another and of the E. Marshal to Edward the first that he would neither go into Gascoine nor hang and such other do 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 allay if the general rudeness of the time the King 's injurious provocations and the passions of cholerick 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 Kingdom 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 Counsels to conform to the Laws and in maintaining that trust that was reposed in them in keeping off such sinister Counsels and invasions as might violate the Laws and Liberties or hinder the current 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 original was Democratical mixt with an Aristocracie 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 Forreign parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the War yet in time of peace was not of that height as to rule alone I mean that whereas the Lords formerly had the principal executory power of Laws setled in them they never were absolutely devested of that power by the access 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 concur the people generally sided with the Lords and so in conclusion the King suffered in the quarrel From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this co-partnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherways be supposed where Councils are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appear 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 is noised for them who are equally if not more entrusted with the Common-wealth than the King by how much the Counsellors are trusted more than the Counselled 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 War. It is 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 add to what hath been already said first that Knight-service was for the defence of the Kingdom principally Secondly that the greatest power of Knight-service rested with the Lords not only in propriety and ownership but in point of direction for the benefit of the Commonwealth and lastly that the state of the times now was such as the Kingdom was oppressed by strangers Counsels and the Counsels of the Kingdom rejected that instead of Law Garrisons of strangers ruled that no man could own his own that the Subjects were looked upon as enemies and of all this the King made the principal instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgement of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to Kingly dignity than was in those times practised And yet there was a difference also in the occasions of War for certainly that last War with Edward the second was more fatal and yet less warrantable and in the issue declared that there was more of the Queen therein than of the Lords who knew a way of removing Favourites from the King without removing the King from the Kingdom or driving him out of the World. In all which nevertheless it cannot be concluded that the Lords party was encreased more than in the former Kings times for the loss of the field in Henry the Thirds time against the Prince kept them in awe all the succeeding Reign although they were not then tongue-tyed and their second loss against Edward the Second which was yet more sharp questionless quelled their spirits although they lost no right thereby and encreased the Kings party much
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the canon-Canon-law into Kingdoms 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 foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils 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 Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears 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 look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council 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 Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
redemption of their Captive King for Knighting of the Kings Son and for his Daughters Marriage because these three might be due by the Common-Law the two latter by custom the former by common right although mentioned from the late disaster of King Richard which King John might with shame enough remember and expect the same measure from the censure of an unquiet conscience I shall not enter into debate concerning the omission hereof in the later Charters possibly it might seem a tautology Nor concerning the restriction as if it did imply that the Burgesses had Vote only in cases of general assesments but shall leave it to the consideration of the Reader No Distress shall be taken for greater service or other matter than is due Distresses are in nature no other than a summons in act or the bringing of a man to answer by seizure of part of his Goods and it was used by the Saxons as hath been shewed and because the rich men under colour of seeking their right many times sought for wrong and though they could not prevail in the issue yet prevailed so far that the Defendant could not escape without charge and hinderance therefore the Law provided a Writ of remedy against unjust vexation which Glanvil remembreth us of and yet because that remedy also carried with it matter of charge and disturbance to the Plaintiff and so the remedy might be worse than the disease therefore the Law defined distresses by circumstances of person matter time and place under penalties of fine and amercement besides the recompence to the party first it must not be taken but by leave from the Kings Court unless in case of matters due by common right and upon complaint made by the Plaintiff The King sent out a Summons in this manner Henricus Rex Ang. Hominibus Abbatis de Ramsey salutem Precipio quod cito juste reddatis Abbati Domino vestro quicquid ei debetis in censu firma debitis placitis quod si nolueritis ipse vos inde constringat per pecuniam vestram And in all cases of matters due by common right the distress never was done in an arbitrary way but by Judicial Act in the Lord's Court. Secondly no distress for suit shall be made out of the Fee nor against any person but such as are of that Fee. Nor shall any distress be made in the King's High-way or open street but by the King's Officer and special Writ because distress 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 Soil haply may be the Lords And therefore it was an old Law that they should be under the King's safeguard Sit pax publica per communes vias and no violence must be there tolerated but by the King 's special Writ which presupposeth the especial notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distress 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 and the Sheriff must grant replevy if it be demanded although formerly no replevy was without special Writ and yet that also not always readily obeyed for the times were such as the Lords were bold with the King's Courts and Ministers and refused the order of the Law. Now in such cases wherein the matter concerned contempt of the King's 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 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 personal Estate of the Delinquent Thirdly as touching the matter of the distress it must not be of Plough beasts or Sheep unless in case of damage fesant if other distress may be had for the Law had a care of such Cattel as were most of publick concernment and which was the main stock of subsistence so far as Justice would allow And therefore the unjust taking of any man's Cattel by any person whatsoever is liable to the same penalties that unjust distresses are Fourthly concerning the using of the distress it must not be sold no not in the King's case till fifteen days be past after it is taken 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 return of the Writ Fifthly the intent of the distresses must be that which is just and therefore not for other suit than by the Feoffment is due or else by Prescription and in case many are joyntly seized the suit shall be by one and the rest shall contribute Nor must any man be compelled to shew his Title to his Land by distress The Common-pleas shall be holden in one certain place The Office of Judge of the Common-pleas was in my opinion distinct and several 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 Chief Judges which both by his own Testimony and Briton's also did hear and determine Causes of all sorts yet is it true also that it was by Appeal or Writ of Errour as in case of false Judgment and that the King had plures curias which doubtless had their proper work And in the time of Henry the second it is clear that six were especially assigned for the Common-pleas throughout the whole Realm and yet by another especial Commission or Letters-Patents the same men might also have power to determine matters of the Crown as at this day in their several Circuits This Law therefore doth not as I conceive work any alteration but onely in this that whereas formerly the Judges of Common-pleas attended on the King's 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 certain place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely and by the Justices itinerant sent by the King or his Chief Justices The Law was so declared in Henry the second 's
are to be ordered by Tutors than Children and therefore this may be annexed to the rest of the Liberties as well as the other Nevertheless it seemeth that the Laws took them into their regard in respect of their Estates which might be abused to the prejudice of the Publick rather than out of any respect had to their persons Now because there is a difference between the disability of these persons the one being perpetual the other temporary therefore is there also by these Laws a difference in the disposal 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 natural affection going along with the blood and this so continued in custom until these times for though the Mirrour of Justice 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 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 But let the time of the entrance of this Law be never so uncertain it is now a declared Law that the King in such cases is the common Curator or Tutor of all such persons as he is a Chief Justice rendring to every one his right The King shall have the Wrecks of the Sea. What shall be called a Wreck the Statute at West 1. declareth viz. Where the Ship so perisheth that nothing therein escapeth alive and these are rather in their original committed to the King as a Curator than given him as a Proprietor although that Custom hath since setled a kind of right which may perhaps be accounted rather a Title by Estoppel For the fundamental 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 appear The Heir in Socage-tenure shall have an Action of Waste and an account against his Guardian for the profits of the Lands and Marriage The Heir in Socage being under age shall also be under custody of such Guardian of the next kinred who cannot challenge right of Inheritance in such Lands so holden as if the Lands descended from the Father's side the Mother or next of the kinred of the Mothers side shall have the custody and so if the Lands descend from the Mother the Father or next kinred of the Father's side shall have the custody And this custody bringeth with it an Authority or Power onely and no Right as in case of the Heir in Knight-service and therefore cannot be granted over as the Wardship in Knight-service might but the Guardian in Socage remaineth accomptant to the Heir for all profits both of Land and Marriage The full age of Tenant in Socage is such age wherein he is able to do that service which is Fourteen years for at such age he may be able by common repute to aid in Tillage of the ground which is his proper service But the Son of a Burgess hath no set time of full Age but at such time as he can tell Money and measure Cloath and such work as concerns that calling Widows deforced of their Dower of Quarentine shall by Action recover damages till they recover their Dower They shall also have power to devise their crop arising from her Dower It was used that the Heir should have the crop with the Land but this Statute altered that former usage and yet saved the Lord's liberty to distrain if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilful 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 less a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wills and not of the Laws of the Kingdom as the complaints of the Clergy in the times of Henry the Third do witness Nevertheless because many mens cases befel not directly within the Letter of any Law for remedy and yet were very burthensome for want of remedy it is provided by this Law that such emergent cases that do fall within the inconvenience shall be comprehended within the remedy of that Law. Aid to make the Son of the Lord a Knight 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 yearly value of Socage-tenure The uncertainties of Aids are by this Law reduced and setled as touching the sum and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular sum hereby but also the age of the Son when he was to be made a Knight viz. at the age of Fifteen years too soon for him to perform Knight-service but not too soon for the Lord to get his money And the Daughter likewise was allowed to be fit for Marriage at Seven years 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 gain that made the Law and it was not amiss to have the aid beforehand though the marriage succeeded not for many years after and if the Lord died in the interim the Executors having Assets paid it or otherwise his Heir 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 later birth albeit even they also have been of ancient constitutions and divers of them itinerant also and some of them setled in one place The work of the Justices itinerant was universal comprehending both the matters of the Crown and Common-pleas That of Oyer and Terminer is onely of Crown-pleas originally commenced and enquired 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 work that is to deliver the Gaols of all criminal offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognizance of Common-pleas onely and
what manner they thought meet and not otherwise Aids are lawful if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no less lawful yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of moneys to the King may be made by them that will but the King must not demand them because the Subject hath no means to recover the debt This trick had been lately tryed by Edward the Second much money he got and it was repayed by the Order of the Parliament But of all the rest nothing shewed more absolute Authority in the publick Revenue than the care that was had of the Demesnes of the Crown for whereas the Expxences of Kings grew so vast that neither the yearly Revenue could suffice nor Aids Assessments and Taxes could satisfie however ordinary they in these times were become rather than Kings would contain themselves they would invade their own Demesnes by pawning selling and giving them away either for love or money and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leak that was like to undo all applyed a speedy remedy undoing what was done and undoing some by an Act of Resumption and thereby taught Kings to look to their Honour better for the future and People also to take heed of medling with such ticklish matters and to know that he that hath such in his possession hath them by a crack'd Title that cannot be amended but by Act of Parliament Fourthly an English King is no Out-law nor can he do any wrong though the man may He hath a double relation one as a King the other as a Man and the uniting of both in one person hath cheated many a man of his judgment in the case of Prerogative He hath a double Will and these many times contrary equally as in other Relations and in this contrariety sometimes the King overcomes the Man and sometimes the Man the King so as if any man the King hath much more cause to cry out O miserable man These divers Wills are generally led by divers Rules One of a man which many times reacheth no higher than the Affections and if the man be weak they deserve little better name than Lusts. The rule of a King is Law or Councils of these in place and unto these in all prudentials he must submit his Judgment and Will as he is a King. Nor can he do otherwise unless he will presume to be wiser than his Council Suitable hereunto doth that clause in one of the Statutes of these times conclude viz. That the King is bound by his Oath to pass all Laws that are for the good of the Kingdom For were the power of Election or determination of the point onely in the King then were the Oath in vain nor is the Parliament at all in case of the King's dissent to judge of the convenience or inconvenience of Proposals made for the good of the whole body according to that power which is exercised in these times Nor is it rational to infer here from that if Law and Council be the Rule of a King then the Obedience of the People unto this King must be in order to Law and Council otherwise the Disobedience cannot be determined to be against the King but against the Man and though against the private Will of the Commander yet not against the Law nor therefore can it be said illegal or unjust The Parliament in these times held forth this Doctrine plainly to the World That it is their proper work in Cases needful to do right to such as are wronged by the King his Command is no Warrant in such Cases If a man be wrongfully imprisoned by him he shall be released and set at liberty by them Let his Act be never so authentical under the Broad Seal it can take no man's Right away Richard the Second did his utmost to satisfie and quiet the tumultuous Rabble under Cade and Straw and granted store of Manumissions to the Bond-men by Declaration and by his Letters-Patents but not one of them good enough to deprive any one of the meanest of the Free-men of their Rights in those Bond-men The priviledge of shewing mercy and granting pardon hath been anciently betrusted to the King as an Overseer of the execution of Law yet he hath not that Prerogative To have mercy on whom he will have mercy Ever since this Nation had learned to read the Bible Murther hath been excepted from mercy nor did the Law ever allow any King that Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation-Oath but by publick Acts of State declaring the same yet because the Parliament was not always sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a general Rule of Inhibition is made against all pardon to be granted by the King in case of Felony but onely in cases allowed by advice of the Council It is true that in the first times of Richard the Second he liked not to be thus girt in his power which he pretended was more at liberty in his Predecessors possibly he meaned King John and Edward the Second who many times did what they listed yet under his favour no Law was so shameless as to hold forth such a power till Richard the Second's Law countenanced it But why do I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never own such an Opinion And therefore it soon proved abortive for within three or four years by publick Act of Parliament it is peremptorily declared That the King's Pardon shall not extend to Murther So as upon the whole matter it is plain That it is not the King's Will though supported by the Council of Lords and backed by the Opinion of the Judges that must be a Rule for the Government of this Kingdom nor doth any Allegiance bind Obedience thereunto in case where Justice or the Liberty of the People is concerned Three things yet remain which Kings have claimed to be their own viz. Conferring Titles of Honour and Places of Trust and the Legislative Power The first is but a Feather and not worthy of regard yet it is plain that these times produce many precedents of Dukes Marquesses and Earls made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its original thence if not in the Field but it is not worthy of the labour The second is more considerable viz. The power of conferring Places of Publick Trust This Kings have pretended unto although in course of congruity it will be thought more meet that it belongeth rather to that chief
Issue or Demurrer and then to the Common-Law where upon Trial if the Defendant make default the Plaintiff shall have Judgement and Execution And if the Heir be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibit Spiritual Courts and Courts of Common-Law yea to over-rule or reverse Judgements and yet the Common-Law held it's ground when it was concerned for neither were all suits there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Council of the King which were also learned Judges of the Law. For the Report informeth that Edward the Second had granted a Rent in Tail to the Earl of Kent who dying his Son under age and Ward to the King Edward the Third seised amongst other Lands the Rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch-bishop and others of the Council calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the Common-law but it would not be allowed because it was to repeal the King's Charter And whereas it was objected that the reference was to the Archbishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the argument of the case it appears clearly that the King's Council there were learned in the Law. And the same is yet more evident by the Title of Bills in those days exhibited in the Chancery which was directed to the Chancellor and the King's Council and the Rule given Per tout les Justices Which I rather note for the shortness of the form of Bills in those days far different from these times wherein the substance of the complaint however small in it self is oftentimes blown out into so great a bubble that it breaks to nothing And the Statutes formerly mentioned do assert the same thing as touching the King's Council For though they speak of the Council or Chancery in the English Tongue yet in the original the words are Conceil en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same In the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon For remedy whereof it was ordained That upon suggestions so made the Complainant was to find Sureties to pursue the Suggestions and that the Process of Law should issue forth against the party without imprisoning him and that if the Suggestions were not proved true the Complainant should incur the like penalty that the Defendant should have done in case he had been found Guilty But afterwards this later Clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant shall be imprisoned until he shall satisfie the Defendant of his Damages and furthermore shall make Fine and Ransom to the King. But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding Damages in such cases into the Chancellour to do according to his discretion And thus the Chancery obtained power to award Damages which they never had formely and the Chancellour a Precedency both in the Chancery and of the Council in the Court of Star-chamber and in many cases in the Exchequer By the first he had a power in matters of Meum and Tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch-bishop of Canterbury Cardinal and Legate à Latere or Arch-bishop Lord Treasurer and Legate à Latere as these days had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted Worth and Uprightness they make the Scepter stoop by stirring up envy in the Nobility and indignation from the people For seldom is it seen that Advancements are fed from the Crown though they be bred from thence but either maintained by new supplies from the peoples Purses or the ruine or decay of some Officers more ancient than themselves or both And such was the condition of the Chancellour he sucked fat from beneath and Bloud and Spirits from the Grand Chief Justiciar of England and so reduced that Honourable Potentate unto the degree of Chief Justice of the King's Bench leaving scarcely unto him the Name or Title of Lord. One thing more remaineth touching the election or nomination of this Great man. At the first he was no better than a Register or the King's Remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuit of the Writings in his custody and questionless Eo usque it is suitable to all the reason in the World that he should be of the King 's sole Nomination and Election But when it befals that instead of advising the King his word is taken to be the Rule and a Judicatory power put upon that and unto this is superadded that honourable trust of keeping and governing the Great Seal of the Kingdom with the continual growing power occasionally conferred upon him by the Parliament He is now become no more the King's Remembrancer but the Lord Chancellor of England and Supream Officer of State. And it seems but reasonable that he should hold his place by publick Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to work for another must give the other that Honour of Electing him thereto nor was this laid aside nor forgotten by these times but a claim was put in for the Election or allowance of this principal Officer amongst others the Parliament obtaining a Judgement in the case by the King's Confession and so the thing is left to the judgement of future ages Viz. Whether a King that can do no man wrong can dissemble the Royal Assent in Parliament or declare himself legally in that manner by Proclamation CHAP. V. Of Admirals Courts THis is a third Court that maintained the King's Judicatory power in a different way from that which is commonly called the Common-Law and by many is therefore supposed to advance the King's Prerogative but upon mistaken grounds It is very true that the
Indefinite or terminated in the Natural Capacity of the King. And to make a full periodâ— to the point and make the same more clear I shall instance in one Precedent that these times of Edward the Third produced The former English Kings had Title to many Territories in France but Edward the Third had Title to all the Kingdom And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that success that in a little time he â—â—ns the highest seat therein and so brought much honour to the English Nation and more than stood with the safety of the Kingdom For in the union of two Kingdoms it is dangerous for the smaller lest it be swallowed by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the people of England should not be subject to the King or his Heirs as Kings of France Which manifestly importeth that an English King may put himself in such a posture in which Legiance is not due to him and that this posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule an English King. Which if so I suppose this notion of Natural Absolute and Indefinite Legiance to the King in his Natural Capacity is out of this Kingdom if not out of the World and then the foot of the whole Account will be that the Legiance of an Englishman is Originally according to the Laws the sum of all being comprehended in the joynt safety of the people of England CHAP. IX Of Courts for Causes criminal with their Laws THe great growth of Courts founded upon Prerogative derogated much in these times from the Ancient Courts that formerly had attained the Soveraignty over the people and in the hearts of them all This was a hard lesson for them to learn but especially of the King's-Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oyer and Terminer Goal-delivery and Justices of Peace Those of Oyer and Terminer were now grown very common but less esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalf of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full sum made the matter so foul as it became a common grievance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goal-delivery likewise grew more mean and ordinary The chief sort of Men in the several Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance The leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffs Coroners Leets were now grown sowr with Age having attained courses by common practice differing from Oppression onely in Name and yet were the times so unhappy as by these courses they had obtained favour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oyer and Terminer and having learned how to make capital offences pecuniary found-such sweetness as they used not to be weary of their places though the Country grew weary of them and therefore disliking uncertaintes in such matters of benefit they cannot rest till they obtain more certain settlement in their places some for Years others for Life and some for ever The Disease thus contracted by degrees the Cure must be accordingly First the Sheriffwicks much dismembred to please the Court-favourites and fill the Kings privy Purse and all raised to the utmost peny of the full and beyond the just value A Law is made to restore the several Hundreds and Wapentakes to the Sheriffs and their Counties and all of them are reduced to the old Rent And it is likewise provided that none shall execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer damages for injustice by them done And that no Sheriff shall serve in that place above one year and then not to be chosen again for that service till three years be past which latter clause was onely a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their bloud but whom they trusted yet the Sheriff came not so night their skin nor yet so nigh their Free-holds as anciently they had done for that their power in Judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of Justice and his place valuable more than formerly it was holden convenient that such as had the chief power of Judicature at Westminster viz. the Chancellour Treasurer Chief â—aron and the two Chief Justices should nominate the man that should be their Servant and in the Parliament nevertheless they interposed in that Election as often as they saw cause Secondly As touching Causes criminal which more ordinarily come within the cognizance of these Courts They generally held the same regard in the eye of the Law in these times that they had done formerly nevertheless in two crimes these times wrought diversly urging the edge of the Law against the one and abating it as to the other The latter of these is commonly called Petit Treason which is a murther destructive to the Commonwealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families do consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children But by this Law of 25 E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have been as well laid aside as divers others were but that in these times much is to be yielded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable
in their Original Bishops were meerly Donatives from the Crown being invested by delivery of the Ring and Pastoral Staff and until King John's time the Canonical way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by divers publick Acts of Parliament in after-times and now by this Law last recited and with this way the King was contented for the space of Six years for the Reformation intended by the King was not done at once but by degrees and therefore though this course of Conge d'eslire was brought into use yet the Parliament being of Six years continuance a necessary thing in times of so great change of Policy began this course of Election by giving the King power to nominate and allowing of the Pope power to grant to such his Bulls or Pall at his own will otherwise they should be Consecrated by Commission without his consent And thus at the first the Pope's Concurrence was not excluded though his Negative was In this posture of affairs comes Cranmer to be consecrated Archbishop And being nominated thereunto by the King the wily Pope knowing the Kings aim meaned not to withstand lest he should lose all but granted the Pall as readily as it was desired so as Cranmer is thus far Archbishop of Canterbury without all exception yet he must go one step farther and take the old Oath to the Pope which the King allowed him to do Pro more and which he did renitente Conscientia say some and with a Salvo say others and all affirm it was done Perfunctorie like some worn Ceremonie or civil Complement Nevertheless it was not so soon turned over the Archbishop loved not the Office the King loved not Partnership in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is loser the English Clergie the savers for the Pall cost Cranmer Nine hundred Marks And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgement and submission but also by a Statute-Law And lastly by Oath which to make sure was treble twined once upon their first submission in the Kings Twentie second year when they had been under Praemuniri Secondly Soon after the decease of Queen Katherine Dowager in the Twentie sixth year which Oath was more compleat than the former containing First A Renunciation of all Fealty to the Pope or any Foreign Power Secondly An Obligation to adhere to the Cause of the King and his Successors Thirdly A Disavowing of the Pope otherwise than as another Bishop or fellow hrother Fourthly An Engagement to observe all Laws already established against the Pope's power Fifthly A Disavowing of all appeals to Rome Sixthly An Engagement to inform the King of all Messages or Bulls sent from Rome into England Seventhly An Engagement not to send or be privy to the sending of any Message to Rome for any such purpose The third Oath was that of Fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacie having been sworn Slaves to the Papacie ever since Becket's time are now preferred to a more Royal Service and the pursuit by Kings after their right being laid aside by the space of 300 Years is now renewed and the prey seized upon by the Lion who found it upon a better Title and in better condition by much than when at the first it was lost For it was upon some semblance of Reason that the Archbishop and Clergie gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the power of his own gripe for the present he is the Occupant and becomes Proprietor by prescription till now the Felon being apprehended the stolen Goods are the Kings in Right and by Remitter whereunto the Parliament by the Statute adding their Conveyance establishes the same by an unquestionable Title Nevertheless their service is no less servile to this Crown than it had been to the Romish Miter formerly they asserted the Pope's Infallibility now the King's Supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the King 's He makes Bishops he makes new Bishopricks and divides or compounds the old as he pleaseth by a power given to Henry the Eighth by Parliament Which Oath was never in any Prince before or after him that I can find so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable Maintenance to support the one and act the other must needs consume himself as one in a Tympanie by growing great For though he was left rich by his Father's Treasure yet his Zeal to Rome in its now poor captivated condition under the Imperial power stirring up in him great undertakings abroad besides his own Pleasures and Gallantry at home exhausted that and doubtless had starved these his grand designs had he not found the hidden Treasures of the Cells and Monasteries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against fear and flattery It was not done without deliberation for the thing was felt as a grievance before the Norman times and complained of in Parliament above a hundred and forty years ago and divers times since but Kings either understood not or believed not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knows much dares do more and is at leisure He will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the work feasible was a president made by Cardinal Wolsey whose power was enough to dissolve some petty Cells and no opposition made The King might well expect the work would be as lawful for him and not much more difficult or if any Storms ensued the people that had so long complained and felt the burthen of these excrescences of the Clergie would soon find out a way to calm them the King need do no more than speak and the people will do This opened the door but that which brought the King in was the hold the Pope had in this Kingdom by these Cloistered people who were persons dead in Law and dead to all Law but the
formerly hath been already manifested Thirdly As touching Matrimonial Causes their former power of making Laws concerning them and Testamentary Causes is now absolutely taken away onely concerning Matrimonial matters they had so much of the Judicatory power concerning the same put upon them as might well serve the Kings own turn and that was for determining the matter between himself and the Lady Katherine Dowager depending before the Archbishop Cranmer For the King supposed the Pope a Party and therefore meaned not that he should be his Judge And thus though the Clergie had acknowledged the King to be their Supream Head yet in this he was content to acknowledge their Supremacy above him to judge between himself and his Queen and in other matters concerning himself So as upon the whole matter the Convocation were gainers in some things in other things they were onely losers of that which was none of their own CHAP. XXX Of the power of the Clergie in their Ordinary Jurisdiction THose Spirits are truly degenerate that being sensible of miserie cannot stir up desires of Change although the way thereto lies open before them And this shews the nature of the Romish Yoke that it lay upon the Spirits of men did intoxicate and make them drunk with their condition Otherwise the Usurpations Oppressions Extortions and Incroachments of the Popedom upon the Bishops Sphere and the people under their charge could never have provoked such complainings amongst all sorts in several ages from time to time And now that Henry the Eighth undertakes to set them free so as they would acknowledge his Supremacy they all are struck dumb till a Praemuniri taught them to speak and so were scared into a better condition than they would have had and into a more absolute Estate of Jurisdiction than they received from their Predecessors The Pope had now usurped a power supra-ordinary over all Appeals gained the definitive Sentence to the Roman See and had holden this power by the space of four hundred years and the King finding the root of all the mischief to his Crown from abroad springing from that Principle meaned not to dispute the point with the Casuists but by one Statute took away all Appeals to Rome and determined Appeals from the Bishops Court in the Archbishops Court and the Appeals from the Archbishop's Commissarie in the Court of Audience So as though in the Kings own Case the Convocation had the last blow yet in matters concerning the Subjects the Archbishop was either more worthie or more willing with that trust For though the Convocation might have determined all as well as the Pope yet for dispatch sake of a multitude of Appeals now depending at Rome and to prevent long attendance on the Convocation that now had much to do in matters of more publick nature the utmost Appeal in such cases is made Provincial This whether priviledge or prejudice the Ecclesiastical Causes gained above the Civil whose definitive Sentences was reserved to the Parliament And thus is the Archbishop made Heir to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiastical within his own Province A trick that in my opinion much darkned the Glory of the Kings Title of Supream Head which the Church-men had formerly offered up to the honour of the Crown of this Realm For be it so that the Title is in the Crown by Remitter yet cannot the same carry along with it any more than a lawful power and whether all the Pope's former power allowed him by the Canon or gained by Usurpation and Custom shall be said a lawful power or whether the power of Review by Appeal shall be derived to the Crown under the general Notion of Supreamacy upon the Clergies submission is to me a doubt albeit I must give honour to the Judgement in Print in regard that after the submission of the Clergie the matter concerning the Divorce of the Lady Katherine Dowager came before the Pope by Appeal and there depended the King himself also waiting upon that See for Justice and a definitive Sentence in that matter and thereby acknowledged the Pope's power De facto Notwithstanding the Clergies foregoing submission and being occasioned by the delay at Rome he procured this Statute concerning Appeals to be made whereby at one breath he took the Appeals to Rome away and setled them as formerly hath been mentioned all which was done two years before the Title of Supremacy was annexed or declared for to be to the Crown by Act of Parliament And therefore as to me it appears the power of Supream Cognizance of Appeals was not in actual possession of the Crown by the Clergies submission so was it actually vested in the Archbishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crown actually possessed much less had the Crown the same by Remitter For the King's turn once served by the Convocation and the matter of the Divorce of Queen Katherine setled the King perceiving the slow progress of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Archbishop Cranmer likewise foreseeing that the Odium of these Definitive Sentences would be too great for him to bear another Appeal is provided more for the honour of the Crown to be from the Archbishop to Delegates to be appointed by the King his Heirs and Successors so as though their Nomination be the Kings yet their power is deduced immediately from the Parliament which took the same from the Archbishop and conferred it upon them A second advantage not inferiour hereto which the Archbishop gained out of the ruines of the Popedom was the power of Licenses and Dispensations or Faculties In the Pope it was a transcendent power without any rule but what was tuned to him by the Bird in his own breast and was the ground of much license or rather licentiousness in the world But in the Archbishop they seem to be regulated To be First in Causes not repugnant to the Law of God. Secondly such as are necessary for the Honour and Security of the King. Thirdly such as were formerly wont to be remedied at the See of Rome yet in truth left as much scope for the Conscience of the Archbishop to walk in as the Pope had in former times A large Teather and greater priviledge than ever the Crown had by which although the King himself be like Saul higher by the Head than all the people yet in many things Samuel is higher than he The moving cause hereof is not difficult to find out the King had but lately married the Lady Anne Bullen a thing that many startled at and the King himself not extreamly resolved in he would therefore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Ecliptick line of the Law and so
than the people were backward thereto and therein shewed themselves the true Seed of their Ancestors in Germany of whom it 's observed that they endured not Images but worshipped a Deity which they saw sola reverentia Sorcery and Witchcraft they had in abomination yet it was a sin always in a mist and hard to be discerned but by the quick-sighted Clergy and therefore it was left to their censure as a sin against the Worship of God. This Ethebald the Mercian King first endowed them with and they alone exercised the Cognizance thereof till Alfred's time who inflicted thereupon the penalty of Banishment but if any were killed by inchantment the delinquent suffered death by a Law made by Aethelstan And thus by degrees became one and the same Crime punishable in several Jurisdictions in several respects Concerning Perjury the Prelates had much to do therewith in future times and they had the first hint from Ina the Saxon King 's Grant to them of power to take Testimonies upon Oath as supposing that the Reverence that men might bear to their Persons and Functions would the rather over-awe their Tongues in witnessing that they would not dare to falsifie lest these knowing men should espy it and forthwith give them their doom But no positive Law allowed them that power of sentence till Aethelstan's Law gave it and upon conviction by the same Law distested the delinquents Oath for ever Sacriledge comes in the next place being a particular Crime meerly of the Clergy-mens invention and naming for before they baptized it you might have well enough called it Theft Oppression or Extortion This Crime the Prelates held under their Cognizance by vertue of that general Maxime That all wrong done to the Church must be judged by the Church The first time that I can observe they challenged this power was by Egbert Archbishop of York in the Seventh Century But nothing was more their own than Simony and that may be the reason why we find so little thereof either for the discovery or correcting of it All former Crimes were in their first act destructive to the Church but this advantageous and therefore though the Canons roar loud yet the execution is not mortal because it 's bent against the dignity and not the gain And although the Canon would not that any Presbyter should be made but presented therewith to some place to exercise his Function in yet it serveth not for those times when men were sent forth rather to make Flocks than to feed Flocks And yet the Theam of Marriage was the best Dish in all their Entertainment They had the whole common place thereof with the Appurtenances within the compass of their Text before ever it attained the honour of a Sacrament It was a branch of Moses Law whereof they were the sole Expositors and so seemeth to be cast upon them by a kind of necessity as an Orphan that had no owner Nevertheless a passage in Eusebius seemeth to report this Trust in the Civil Magistrate for he relateth out of Justin Martyr concerning a Divorce sued out by a godly Matron long before the Prelacie got into the Saddle or the Clergie had the power of Judicature And whereas Lucius taxed Vrbicius the Magistrate for punishing Ptolomy who was guilty of no Crime worthy of his cognizance in that kind amongst other Crimes enumerated by him whereof Ptolomy was not guilty he nameth the Crimes against the Seventh Commandment intimating thereby a power in the Judge to have cognizance of those Crimes as well as others But the Prelacie beginning to mount nibled at it in the second Centurie but more cleerly in the fourth when the persecutions were allayed and men of Learning began to feel their Honour and never left pursuit till they had swallowed the Bait and exercised not onely a Judiciary power in determining all Doubts and Controversies concerning the same but challenged an Efficienciary power in the Marriage-making This Garland Austin brought over with him and crowned the Saxon Clergie therewith as may appear by his Queries to Pope Gregory And thus the Saxons that formerly wedded themselves became hereafter wedded by the Clergie Yet the Civil Magistrate retained a supream Legislative power concerning it as the joynt Marriages between the Saxons Britons and Picts do manifest For it 's said of that Work that it was effected per commune concilium assensum omnium Episcoporum procerum comitum omnium sapientum seniorum populorum totius regni per praeceptum Regis Inae and in the time of Edward their King were enacted Laws or Rules concerning Marriage and so unto the Lay-power was the Ecclesiastical adjoyned in this Work. The Clergie having gained the Principal with more ease obtained the Appurthenances such as Bastardy Adultery Fornication and Incest There was some doubt concerning Bastardy because it trenched far into the Title of Inheritance and so they attained that sub modo as afterward will appear The Laws of Alfred and Edward the elder allowed them the cognizance of Incest although nevertheless the Civil Magistrate retained also the cognizance thereof so far as concerned the penalty of the Temporal Law. Adultery and Fornication they held without controul yet in the same manner as the former for the Civil Magistrate had cognizance thereof so far as touched the Temporal penalty And to give them as much as can be allowed it 's probable that in all or most of the Cases foregoing they had the honour to advise in determining of the Crime and declaring the Law or defining the matter for in those ignorant times it could not be expected from any other But how the cognizance of Tythes crept under their wing might be much more wondred at for that it was originally from the Grant of the People nor can a better ground be found by me than this that it was a matter of late original For till the Seventh Century the times were troublesome and no setled maintenance could be expected for the Ministry where men were not in some certainty of their daily Bread. And as it will hardly be demonstrated that this Title was ever in any positive National Law before the time of Charlemain in whose time by a Synod of Clergie and Laitie it was decreed that Tythes should be gathered by selected persons to pay the Bishops and Presbyters So neither can I find any Saxon National Constitution to settle this duty till Alfred's time although the Church-men had them as a voluntary Gift so far as touched the quota pars for the space of well-nigh a hundred years before But Alfred made a National Law under a penalty to enforce this Duty which the Canon could not wring from the Saxons how dreadful soever the Censure proved And by this means the Church had their remedy by Ecclesiastical censure for the matter in fact and
sentencing one to suffer death upon the Coroners record without allowing the Delinquent liberty of Traverse This Officer also was made by election of the Freeholders in their County-Court as the Sheriff was and from amongst the men of chiefest rank in the County and sworn in their presence but the Kings Writ led the work CHAP. XXIV Of the County-Court and the Sheriffs Torne THE Government of the County in times of peace consisted much in the administration of Justice which was done in the publick meetings of the Freeholders and their meetings were either in one place or in several parts of the County in each of which the Sheriff had the managing of the acts done there The meeting of the Free-men in one place was called the Folkmote by the Saxons saving the judgment of the honourable Reporter Coke Instit. 2. p. 69. and of latter times the County-Court the work wherein was partly for consultation and direction concerning the ordering of the County for the safety and peace thereof such as were redress of Grievances election of Officers prevention of dangers c. and partly it was judicial in hearing and determining the common Pleas of the County the Church-affairs and some trespasses done therein but not matters criminal for the Bishop was Judge therein together with the Sheriff and by the Canon he was not to intermeddle in matters of Blood yet neither was the Bishops nor Sheriffs work in that Court other than directory or declaratory for the Free-men were Judges of the act and the other did but edocere jura populo yet in special cases upon petition a Commission issued forth from the King to certain Judges of Oier to joyn with the others in the hearing and determining of such particular cases But in case of injustice or errour the party grieved had liberty of appeal to the Kings Justice Nor did the Common Pleas originally commence in the County-Court unless the parties dwelt in several Liberties or Hundreds in the same County and in case any mistake were in the commencing of Suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preheminence In those ancient times this County-Court was to be holden but twice a year by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings special Writ or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the Free-men of the County assembled to learn the Law to administer Justice to provide remedy for publick inconvenience and to do their fealty to the King before the Bishop and Sheriff upon Oath and in the work of administring Justice causes concerning the Church must have the precedency so as yet the canon-Canon-Law had not gotten footing in England The other Court wherein the Sheriff had the direction was in the meeting of the Free-men in several parts of the County and this was anciently and now is called the Sheriffs Torne which simply considered is but a Hundred-Court or the Sheriffs Torne to keep the Hundred-Court It was ordered to be kept twice every year viz. at the Lady-day and Michaelmas or soon after Unto this Court all the Free-holders of the Hundred repaired and there they the Bishop and Sheriff executed the same power and work for kind that they did in the County-Court In this Court all the Suits in the Hundred-Court depending had their determination and others had their commencement and proceedings as well the Pleas of the Crown as others Some have conceived it to be a County-Court or superiour thereto but there being no ground thereof I conceive it to be no other than a Visitation of the County by parcels or in circuit CHAP. XXV Of the Division of the County into Hundreds and the Officers and Court thereto belonging COunties were too great to meet upon every occasion and every occasion too mean to put the whole County to that charge and trouble and this induced sub-divisions the first whereof is that of the Hundred now and also anciently so called but as ancient if not more is the name Pagus for the Historian tells us that the Germans in the executing of their Laws a hundred of the Free-men joyned with the chief Lord per pagos vicosque which first were called Centenarii or Hundreders from their number but used for a title of Honour like the Triarii And as a second hereunto I shall add that testimony of the Council at Berkhamsted which speaking the reduction of Suits from the Kings Court ad pagi vel loci praepositum in other places it is rendred to the Governours of the Hundred or Burrough And at this day in Germany their Country is divided into Circuits called Centen or Canton and Centengriecht and the Hundreders they call Centgraven or Hundred-chiefes whether for Government in time of peace or for command in time of War the latter whereof the word Wapentake doth not a little favour Amongst these one was per eminentiam called the Centgrave or Lord of the Hundred and thereunto elected by the Free men of that Hundred and unto whom they granted a stipend in the nature of a Rent called Hundredsettena together with the government of the same The division of the County in this manner was done by the Free-men of the County who are the sole Judges thereof if Polydores testimony may be admitted and it may seem most likely that they ruled their division at the first according to the multitude of the Inhabitants which did occasion the great inequality of the Hundreds at this day The Government of the Hundred rested at the first upon the Lord and the Hundredars but afterwards by Alfred they were found inconvenient because of the multitude and reduced to the Lord or his Bailiff and twelve of the Hundred and these twelve were to be sworn neither to condemn the Innocent nor acquit the Nocent This was the Hundred Court which by the Law was to be holden once every Month and it was a mixt Court of Common-pleas and Crown-pleas for the Saxon Laws order that in it there should be done justice to Thieves and the trial in divers cases in that Court is by Ordeale Their Common-pleas were cases of a middle nature as well concerning Ecclesiastical persons and things as secular for the greater matters were by Commission or the Kings Writ removed as I formerly observed all Free-holders were bound to present themselves hereat And no sooner did the Defendant appear but he answered the matter charged against him and judgment passed before the Court adjourned except in cases where immediate proof was not to be had albeit it was holden unreasonable in those days to hold so hasty process and therefore the Archbishop of York prefers
make a Law somewhat short of a full freedom and yet outreaching that of Bondage which we since have commended to posterity under the Forest-Charter And yet for all that it proved a hard matter for Kings to hunt by Law and the Law it self is a Yoke somewhat too heavy for a Commonwealth to bear in old age if self-denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of Justice THus far of the several Tribes and numbers of this Commonwealth 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 self in all Causes arising within the verge of that Precinct some of which had more extraordinary trial before the King and his Council of Lords according as the parties concerned were of greater degree or the Cause of more publick concernment Examples hereof are the Cases between the Bishop of Winchester and Leoftin in Aetheldred's time and between the two Bishops of Winchester and Durham in Edward's time But custom made this Court stoop to smaller game in latter times and to reach at the practice of the County-Court by sending the Kings Writs to remove certain Causes from the cognizance of those rural Judicatories to their sublime determination And thus became the Council of Lords as an Oracle to 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 sense and had it confirmed to him by an Oath se judicium rectum in Regno facturum justitiam per concilium procerum regni sui tenturum so as though he was the first in view yet the Council of Lords was the first in nature and the Cynosure to direct his tongue and actions From this Fountain issued also streams of Judicature into all parts by Judges itinerant under the Kings Commission to reform errors punish defaults in the ordinary rural Judicatories 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 Appeal Presentment 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 criminal the most ancient way of proceeding was by Appeal of the party complaining But afterward in cases that concerned Damage 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 the Publick 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 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 Hallifax-Law but in latter times he was imprisoned or admitted to Bail if the offences were bailable and if the party bailed made default or did not abide the Trial his Bail suffered as Principal If no Bail could be procured the Delinquent was imprisoned till he was legally acquitted but this imprisonment was only in nature of restraint If the Delinquent was found upon the Huy and Cry and would not yield himself he was in repute a common Enemy and as a Wolf any man might kill him as the Law was also the same in case of Vtlary At the time of tryal 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 arm and that this was done Feloniously or if the case required Traiterously and if I. S. deny the same I will for the King prove the matter against him as the King ought to do that is to say by Witnesses and Twelve men But if the complaint was at the suit of the party then the Prosecutor sued him upon Appeal in manner following I. C. appealeth D. H. here present for that E. Father Brother Son or Vncle according as the case was to I. C. being in the peace of God and of our Soveraign Lord the King at the dwelling house of E. at c. the said D. H. upon the day of in the year of with a Sword made a Wound of two inches long and six inches deep in the left pap 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 in his body or as a Monk Woman or Clerk behoveth to prove the same that is by Champion for neither Monk Woman nor Clerk was by Law to justifie by Battle in their own person The several causes of Appeal and Indictment may be found in the Law-books to whom I refer the Reader it not being within the compass of this Discourse to fall upon the particulars I shall onely observe the difference between Indictments former and latter and between them and Appeals viz. that Appeals 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 same 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 Freemen concerning the fact Secondly the difference between former Indictments from these in these days 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 same the later of the fact A third way of bringing Controversies unto judgement concerned onely such matters as were of less consequence and these were introduced by way of Presentment in the name or behalf of the King in nature of a positive Accusation of one for a Crime first laid down generally and then asserted by a particular fact in this manner I say for our Soveraign Lord the King That H. here is perjured and hath broken saith against the King because whereas H. is or was Chancellour of the King and was
of the like nature in Histories may appear The Conveyances formerly mentioned concerned Lands and Goods but if no such disposal of Goods were the ancient German custom carried them after the death of the ancestor promiscuously or rather in common to all the Children but in succeeding times the one half by the Law of Edmond passed to the relict of the party deceased by force of contract rather than course of descent After him Edward the Confessor recollecting the Laws declared that in case any one died intestate the Children should equally divide the Goods which I take to be understood with a salvo of the Wifes Dower or Portion As yet therefore the Ordinaries have nothing to do with the Administration for Goods passed by descent as well as Lands and upon this custom the Writ de rationabili parte bonorum was grounded at the Common-law as well for the Children as the Wifes part according as by the body of the Writ may appear CHAP. XLII Of times of Law and Vacancy SUch like as hath been shewed was the course of Government in those darker times nor did the fundamentals alter either by the diversity and mixture of people of several Nations in the first entrance nor from the Danes or Normans in their survenue not onely because in their original they all breathed one air of the Laws and Government of Greece but also they were no other than common dictates of nature refined by wise men which challenge a kinde of awe in the sense of the most barbarous I had almost forgot one circumstance which tended much to the honour of all the rest that is their speedy execution of Justice for they admitted no delays till upon experience they found that by staying a little longer they had done the sooner and this brought forth particular times of exemption as that of Infancy and Child-bearing in case of answering to criminal Accusations But more especially in case of regard of holiness of the time as that of the Lords day Saints days Fasts Ember days for even those days were had in much honour Nor onely days but seasons as from Advent to the Octaves of Epiphany from Septuagesima till Fifteen days after Easter or as by the Laws of the Confessor till Eight days after Easter and from Ascention to the Eighth day after Pentecost And though as Kings and times did change so these seasons might be diversly cut out as the Laws of Alfred Aethelstan Aetheldred Edgar Canutus and Edward do manifest yet all agreed in the season of the year and that some were more fit for holy observation than others And thus by the devotion of Princes and power of the Clergy the four Terms of the year were cut out for course of Law in the Kings Court the rest of the year being left vacant for the exercise and maintenance of Husbandry and particular callings and imployments saving that even in those times the Courts of the County and Hundred held their ancient and constant course Last of all and as a binding Law unto all it was provided that false Judges should give satisfaction to the party wronged by them and as the case required to forfeit the residue to the King to be disabled for ever for place of judicature and their lives left to the Kings mercy CHAP. XLIII The end of the Saxon Government ANd this far of the joynts of the Saxon Government in their Persons Precincts Courts Causes and Laws wherein as the distance will permit and according to my capacity I have endeavoured to refresh the Image of the Saxon Commonwealth the more curious lineaments being now disfigured by time Afar off it seems a Monarchy but in approach discovers more of a Democracy and if the temper of a body may appear by the prevailing humour towards age that Government did still appear more prevalent in all assaults both of time and change The first great change it felt was from the Danes that stormed them and shewed therein much of the wrath both of God and man. And yet they trenched not upon the fundamental Laws of the peoples Liberty The worst effect was upon the Church in the decay of the power of Religion and the Worship of God. For after much toil and loss both of sweat and bloud the Danes finding that little was to be gotten by blows but blows and that the Clergy at the least was the side-wind in the course of all affairs laid aside their Paganism and joyned with the Clergie and as their Converts and Pupils gained not onely their quiet residence but by the favour of the Clergie to make trial of the Throne and therein served the Clergie so well as they brought the people to a perfect Idolatry with times places and persons and subjection of their Estates to Church-Tributes And as at Tennis the Dane and Bishop served each other with the fond Country-man that whether Lord Dane or Lord-Bishop was the greater burthen is hard to be determined Thus became ambitious Prelacy in its full glory and the poor Church of Christ clouded in darkness and little hold left for recovery but onely by the liberty of the Saxon Freemen which the Danes could never conquer not for want of will or power but of time and occasion For the Crown returned to the Saxon-line again after the half age of one man although it was worn by three so God would have it nor did any monument of the Danish Government remain saving a few customs in some places which shew rather that the Danes were here than that they ruled here To sum up all The Saxon Common-wealth was a building of greatest strength downward even to the foundation arched together both for Peace and War. That by the Law of Decenners wherein Justice was the bond their Armies were gathered not by promiscuous flocking of people but by orderly concurrence of Families Kindreds and Decenners all chusing their own Leaders And so Honour Love and Trust conspired together to leave no mans life in danger nor death unrevenged It was a beautiful composure mutually dependant in every part from the Crown to the Clown the Magistrates being all choice men and the King the choicest of the chosen election being the birth of esteem and that of merit this bred love and mutual trust which made them as corner-stones pointed forward to break the wave of danger Nor was other reward expected by the great men but honour and admiration which commonly brought a return of acts of renown Lastly it was a regular frame in every part squared and made even by Laws which in the people ruled as Lex loquens and in the Magistrate as Lex intelligens all of them being grounded on the wisdom of the Greeks and Judicials of Moses Thus the Saxons became somewhat like the Jews distinct from all other people their Laws honourable for the King easie for the Subject and their Government above all other likest unto that of Christ's Kingdom whose
and being trained up even from the Cradle in the English garb moralized by Learning and now admitted into the Throne found it the wisest course to apply himself to the rule of an English King viz. To win and maintain the good opinion of the people by consorting together with them under one Law and pledging himself thereto by taking unto Wife one of the English Blood-royal by this means he refeised and reassumed the English in partnership with the Norman in their ancient right of Government and reconciled the minds of the people under a lively hope of enjoying a setled Government Nor were they greatly deceived herein for his course was less planetary than that of either of his predecessors and yet we find little said of his parley with his people in a Parliamentary way although more of his Laws than of any of his predecessors The reason will rest in this that the Writers of those times touch more upon matters of ordinary than political observation and regarded rather the thing than the place or manner how The Laws therefore although they are not entituled as made in Parliament yet in the continuation of the History of Bede it is noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae which may give sufficient cause to suppose that he declined not the ancient way no more than he did the ancient Law. CHAP. XLVII Of the Franchise of the Church in the Normans time THE canon-Canon-Law that ever since Austin's coming like Thunder rumbled in the Clouds now breaks forth with confusion to all opposers It had formerly made many fair proffers of service to this Island but it was disaccepted as too stately to serve yet by often courtesies received it was allowed as a Friend afar off For the vast body of the Roman Empire like a body wasting with age died upward and left the Britains to their own Laws before the second Beast was grown which being young was nourished under the Imperial Law of the first Beast till it grew as strong as its Dam and began to prey for it self The Empire perceiving its grey hairs and the youthful courage of this Upstart was glad to enter mutual League with it That to maintain the Ecclesiastical Monarchy and This again to support the Imperial and so became the Canon and Imperial Law to be united and the Professours to be utriusque juris But this parity continued not long the young Beast looked like a Lamb but spake like a Lion and contrarily the Eagle had cast its Feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon-Law above the Imperial yet allowing it to serve the turn And so the Professours of both Laws became Students in the Civil but Practisers of the Canon This Composition thus made beyond the Seas the great work was how to transport it over into this Isle for the Emperour could entitle the Pope to no power here because none he had Austin the Monk undertakes the work he offers it to the Britains under the goodly Title of Universal Bishop but they kept themselves out of Canon-shot The Saxons allowed the Title but liked not the power the Monk observed the stop and left time to work out that which present cunning could not being content for the present that a League of Cohabitation should be made between the two Swords though the spiritual were for the present underling not despairing that it would work out its own way over the Saxon Law as it had done over the Imperial Nor did his conceit altogether fail for the Saxons by little allowed much and the Danes more although the main was preserved until the Normans came upon the Stage who made their way by the Pope's lieve and gave him a colour of somewhat more than ever any of their Saxon predecessors had done and to gain the more quiet possession of the Crown to themselves allowed the Pope the honour of their Council learned to draw the Conveyance which as some think was made advantageously for the Pope himself 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 voice of a Royal Law First complaining of misgovernment as if the Church were extremely wronged by having the same way and Law of Tryal with the Commons of England and then propounds four several Expedients enough to have undone the whole Commonwealth in the very entrance had not the superstition of those times blinded both Parliament and People and rendred them willing to that which their successours 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 Bishop's 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 years foregoing in the Negative No Case concerning the Regiment of Souls shall be brought before the Secular Judge The Regiment of Souls was a common place sufficient to contain any thing that was in order thereunto and so every one that hath a Soul must be no more responsible unto the temporal Judge for any matter concerning it but unto the Ecclesiastical power And this not onely in case of scandal as against the moral Law or rule of Faith but for disobedience done to the Canons made afar off concerning any gesture or garb that may come within the savour of an Ecclesiastical 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 tryal 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 spiritual Judge And thus the poor Country-man 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 implicit Faith. And herein the providence of God I imagine was more manifest than the wisdom of Man which was too weak to foresee events at so great a distance for questionless it was a point of excellent wisdom for the people now under a King of a rugged nature that would not stick to catch whatsoever he could get to deposit part of their Liberties into
the Diocess of Lincoln into two Diocesses by advice of the Bishops Princes and other wise and holy men and turned the Abbey of Ely into a Bishop's See. But it was their wisdom to preserve the ancient Land-marks and no less both wisdom and care to continue their due Priviledges and Interests to each Every County had its Court and every Court its wonted Jurisdiction No complaint must be to the King's Court if right may be done in the County no distress must be taken but by Warrant from the County and that must be after complaint thrice made The County-court must be called as our Ancestors have appointed Such as will not come as they ought shall be first summoned and in case of default distrained at the fourth default the Complainant shall be satisfied out of the distresses so taken and the King also for his Fine These are the express Laws of the Conquerour's own establishment the last of which also Hen. 1. confirmed by another express Law saving that he would allow but of two Summons and two Distresses before execution And as it was one principal work that he undertook to reduce the Laws into course which had been intermitted during the violent times of his Father and Brother the first of whom never had liberty for reformation and the latter never had will so amongst other Laws he setled those concerning the County-court namely 1. That the Bishops Earls and chief men should be present for direction 2. That it should be holden once each month 3. That the Church-matters should precede and then the Crown-pleas And lastly the Common-Pleas besides some other particulars concerning pleading and proceedings in the handling of Causes Neither were these Causes of a petty regard onely but of greatest concernment One example I shall remind the Reader of and not recite in terminis but refer to Mr. Selden's own Pen. The occasion was this Odo the Conquerour's half Brother was by him made Earl of Kent and therewith had the gift of a large Territory in Kent and taking advantage of the King's displeasure at the Archbishop of Canterbury possessed himself by disseism of divers Lands and Tenements belonging to that See. Lanfrank the succeeding Archbishop being informed hereof petitioned to the King that Justice might be done him secundum legem terrae and the King sends forth his Writ to summon a County-court The Debate lasted three days before the Free men of the County of Kent in the presence of many chief men Bishops and Lords and others skilful in the Laws and the Judgment passed for the Archbishop Lanfrank upon the Votes of the Free men This County-court was holden by special summons and not by adjournment as was allowable by the Saxon Law upon special occasions And this Suit was originally begun and had its final determination in the County-court and not brought by a Tolt out of the Hundred-court as is supposed by an honourable Reporter nor by the ancient Laws could the Suit commence in the Hundred because the Lands and Tenements did lie in several Hundreds and Counties The upshot of all is that the County-courts in those days were of so great esteem that two of the greatest Peers of the Realm one a Norman the other an Italian did cast a Title in fifteen Mannors two Townships with many Liberties upon the Votes of the Free-holders 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 of which there are by the Normans allowed two sorts the first whereof was holden twice a year This was formerly called the Torn and was the Sheriff's Court hereof little notice is taken saving that by the Laws of Henry the first its work 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 month and no Suit to be begun in the King's Court that regularly ought to begin in the Hundred 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 appear not Execution shall be by sale of the Distress and the Complainant shall receive satisfaction But by the latter Laws of the same King there are but two Summons allowed and then two Distresses and in case no appearance be Execution shall be for the Complainant and for the King 's Fine Lastly as the case concerned either persons or places sometimes they used to joyn several Hundreds together into one Court but this was by special Commission or Writ As touching inferiour Courts of Towns and Mannors there 's little observation to be had being of too private a regard to come into fame in those rough times yet in Hen. the first 's Laws it is ordered that Town-courts should meet every month and that Lords should hold Pleas either in their own persons or by their Stewards and that the chief man in the Parish with four other of the chiefer sort and the Minister or Parish-Priest should joyn their assistance in that work But in nothing more did the Norman Kings shew their paternal love to the Commonwealth than in the Law of Pledges or Decenners for as of all other Beauties this suffered most blemish from the storm of the Norman Invasion so was it their especial 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 self if any were and made all joynt-partners in one common Liberty 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 whereby 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 freedom unto each Man 's own particular besides what
up higher as for them to stoop lower And however it was dangerous now for the Duke to try masteries unless he meant to hazard all and to change the substance for the shadow Lastly to lay them all aside and to take the Normans as in themselves considered a People under such Laws and Customs as were the same with the Saxon and originally in them and from them derived into Normandy by Rollo or some other or take them as a People willing to lay aside their own Law as some Writers affirm and more willing to take up the Danish customs which were also very nigh akin to theirs and in part setled by the Danes in that part of the Kingdom where themselves most resided It must be concluded that a Government by Law was intended and such a Law that was no way cross to the Fundamental Laws of this Kingdom but concurring therewith in every of which regards the future Generations may justly claim their Immunities as Successours and Heirs unto the Normans albeit no Saxon could have enjoyed or derived the same to Posterity A second sort of men that made the King uncapable to hold by Conquest was the Clergie a considerable part of the Kingdom in those days whenas in every Nation they grew checkmate and in this Kingdom had well-nigh the one half of the Knights fees and thereby a principal part of the strength of the Kingdom besides the Consciences of them all and for a Reserve they had the Pope in the rear whose power in every Kingdom was little inferiour to that of the King 's own and therefore sufficient to stop an absolute Conquest unless the Clergie were first conquered But the King came in upon great disadvantages in both these regards for whereas his pretence upon his entry was to advance Justice principally toward the Clergie who formerly were wronged by Harold or voiced so to be this bound him from Injustice and Oppression And furthermore the Pope had him in a double bond one as Prince of the English Clergie the other as Judge of the Title of the Crown by the King 's own Election and that by Sentence for the King had merited of him if not to hold the Crown it self by Fealty to the Roman See yet by such services as that the Tripple-Crown should be no loser The King therefore must resolve to have no more to do with the Church than will stand with the Pope's liking unless he meaned to adventure himself and all he had into the danger of the great Curse of which the King would seem more sensible than perhaps he was Nor were those times of the Church so moderate as to bring forth Church-men that would catch the good will of the Laity by condescention or Popes of that height of perfection as to part with one tittle of their great Titles much less ought of that pitch of power which they had griped though it would save the World from Ruine In all which regards the Norman Duke was too far inferiour to attain by Conquest any thing in this Kingdom wherein the Pope or Clergie claimed ought to have or do A third sort of People avoided the dint of Conquest either by timely siding with the Norman or by constant resisting of him or by neutrality Of the first sort were many both Lords and others that by affinity and consanguinity were become English-men to the Norman use others were purchased thereunto by the Clergie that were zealous for the Pope's honour that was engaged in the Work. Of those likewise that were resolute in the defence of the Liberty of their Country there were not a few that purchased their Liberty who otherwise might under pretence of Treachery have forfeited the same to the rapacious humour of the Conquerour And this was not done onely by Valour for Normandy stood in a tottering condition with their Duke partly drawn away by the French that feared the Duke would be too strong for them and partly declining their own further aid lest their Duke should be too great for the Dutchy It was therefore wisdom in the Conquerour to settle the English aflairs in the fairest way to gain them for himself who had been so brave against him But the greatest number especially of the Commons looked on while the game was playing as contented with the cast of the Dice whatever it should be These were afterwards by the King looked upon not as Enemies as the president of Edwin of Sharneburn witnesseth sufficiently but such as either were or by fair carriage would be made his friends and therefore he concluded them under a Law of assurance that they that had been so peaceable should have and enjoy their Lands as entirely and peaceably as they had formerly done before his entry To conclude therefore this point if these three parties of the English Normans the English Clergie the stout English and the peaceable English be set aside from the Title of Conquest it will be probable that not one tenth part of the Kingdom were ever under other change than of the Governour 's own person CHAP. LVI A brief Survey of the sence of Writers concernign the point of Conquest THE clamours in story that the Conquerour altered and made Laws at pleasure brought in new Customs molested the Persons and Estates of the People with Depopulations Extortions and Oppressions and others of that nature have made latter times to conclude his Government to be as of a Conquerour meerly arbitrary and that he did what he list How different this conclusion is from the intent of those Writers I know not but if the King's Title and Government was as a Conquerour then was his Will the onely Law and can administer no cause of complaint of wrong and oppression and therefore if these be taken in nature of complaints they declare plainly that there was a Law in Title or else there could have been no transgression or cause to complain But if the Reader shall apprehend these passages in Writers to be no other than sober Relations then were it not amiss to consider from what sort of men these Complaints or Relations do proceed viz. from Writers that have been cloystered men little seen in affairs of State more than by common report and rumour prejudiced by the King's displeasure against their Cloysters and therefore apprehensive of matters in the saddest sence and many times far beyond the truth and might as well be supposed to mis-relate as to mistake For if we shall touch upon particulars I think no man will deny but the King allowed property indifferently as well to Normans as English if the premises be rightly considered and therefore though somewhat be true of the plundering of houses of Religion persecuting of the English Nobility deposing of Bishops and Abbots whereof they speak yet all might be deservedly done in a legal way and in execution of Justice whereof Histories are not altogether silent Nevertheless if in the prosecution the King did
declared according to the entry in that Case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councils which weakned the esteem of Conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle And by this means the necessity of calling together the whole Body-Representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its Juridical power to the three Courts at Westminster viz. the Kings-bench Common-pleas and Exchequer saving still the supreme Judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free voting without impeachment CHAP. LIX Of the state of the Clergie and their power in this Kingdom from the Normans time IF the Prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much less in these times succeeding wherein the Clergie took up the Bùcklers and beat 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 Bond-servant and they might have any thing sobeit they would suffer him to enjoy his Crown His Brother the Bishop was the Pope's servant the Church-mens patron and the King's 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 than Election Conscience in those times was well enough satisfied in the breach of Covenant on their part when on the King's part it was first broken All this the King saw full well and therefore what can he deny to such Benefactors Vacancies of Churches he readily parts with and his right of investiture of the Mitred Clergie he dispensed so as he open'd the way to his Successours of an utter dereliction of that Priviledge He sees his Brother the Legate deflower the Crown of England by maintaining Appeals from the Courts in England unto the Court of Rome and he says nothing he is contented with the stump of the Crown and with Saul if he be but honoured above or before all others of the people it is enough But the Clergie like the barren Womb hath not yet enough The King hath allowed them Castles and too late he sees that instead of being Defences against the Imperial power of the Empress they are now made Bulwarks against the lawful power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himself is now summoned to answer this before a Legatine Council wherein his Brother is President That was a bold adventure in them but it was extreme rashness in him to appear and plead the Cause of the Crown of England before a Conventicle of his own Subjects And thus to secure Rome of Supremacy in Appeals he suffers a recovery thereof against his own person in a Court of Record and so loses himself 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 Empress perceiving the power of the Clergie betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospel were now under their decree publish That the Election of the King belongeth unto them and by them the Empress is elected Queen in open Synod Steven's 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 King's return unto his Throne again wherein he continued a friend to the Clergie 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 pre-engagement 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 Clergie and the advantages lost from the Crown by his Predecessor And to regain these he smooths his way towards these braving men speaks fair profers fair he would act to increase the bounds of the Church He would have the Pope's leave to do him a kindness and sobeit he might gain an interest in Ireland he would take it from the Pope who pretended as Heir 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 Pope's kindness for the confirmation of the Liberties and Customs of his Crown and Kingdom and no sooner desired than obtained This was a second 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 less benign to the Church-men till he found by his dear-bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himself as in that shameful success of the death of Becket may appear wherein he yielded the day up to the Clergie who formerly scorned to stoop to the greatest Potentate on Earth The State of Kings is to be pitied who must maintain a politick affection above and sometimes against Nature it self 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 and then Archbishop of Canterbury he became so great that his Feathers brushed against the King's Crown who begins to rouse up himself to maintain his Honour and Prerogative Royal. The Bishops side with Becket the King intending the Person and not the Calling singles out the Archbishop and hunts him to soil at Rome yet before he went the King puts the points of his Quarrel 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 Pope's pardon and blessing the rest of the Bishops yielding 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
that they may not appear to be Clerks 16. Justices itinerant do imprison Clerks defamed for Felony or otherwise out-law them if they do not appear And otherwise proceed against Clerks after their purgation before the Ordinary 18. The Lay-power seizes upon the Estates of Clerks degraded for Crimes 19. Clergie are compelled to answer and give satisfaction for offences against the Forest-Laws before the Lay-power And in case of default the Bishop by distress is compelled to order satisfaction as well in such cases as in personal Actions 22. Priviledges of Sanctuary are invaded by force 23. Executors of Bishops are hindred from administring the Estate without License first obtained from the King. 24. The King's Tenants Goods are seized after their decease by the King's Bayliffs 25. Intestates goods are seized by their Lords and their Ordinary hindred from Administration 26. The King's prohibition passeth in case of Tythes and Chappels 27. The like in cases of Troth plight Perjury Cerage Heriet or other Church-duties as money for reparations of Churches and fences in Church-yards pecuniary punishment for Adultery and costs of suit in Ecclesiastical Court Sacriledge Excommunication for breach of the Liberties of the Church contrary to the Grand Charter 30. In cases of prohibition if the Ecclesiastical Judge proceed contrary to the same he is attached and compelled to shew his Acts in Court if the lay-Lay-Judge determine the cause to be Temporal the Ecclesiastical Judge is amerced if he proceed against the prohibition and it is tryed by Witnesses of two ribaulds and in case it be found for the Ecclesiastical Judges cognizance yet there is no costs allowed for such vexation 32. That Jews in matters Ecclesiastical aforesaid are by the King's prohibition drawn from the Ecclesiastical Judge unto the Lay-Magistrate 34. Question about Lands given in Frankalmoin are tryed in the Lay-Courts and by reason of such Tenure the owners though Clergie men are compelled to do suit at the Lay-Courts and are charged with impositions and are distrained hereunto although the Lord have other Land of the Donor in Frankalmoin subject to his distress 39. Prelates summoned to higher Courts are not allowed to make Attorneys to appear for them in the inferiour civil Courts 41. Grantees of Murage or other unwonted impositions compel the Church-men to pay the same 42 43. The Clergie are charged with Quarter Cart-service and purveying 44. The Chancery sendeth out new Writs contrary to the liberties of the Church and the Law of the Land without the assent of the Council of the Kingdom Princes and Prelates 45. The King doth compel the Clergie to Benevolences to the King at his Voyage into foreign parts 46. Amercements granted to Clergie-men are turned into Fines by the Justices and by them taken 47. Clergie-men are fined for want of appearance before the Justices itinerant and of the Forest upon common summons 48. Quo warranto's granted against the Clergie for their Liberties and the same seized unless they be set down in express words in their Charter notwithstanding that by long custom they have enjoyed the same and many times contrary to express grant This is the sum of their Paper of Grievances and because they found the King either wilful or unconstant they resolve upon a Remedy of their own by Excommunication and Interdiction not sparing the persons of any principal or accessory nor their Lands no not of the King himself and for this they joyn all as one man. Now what scare this made I know not but Henry the third in the Stat. of Marlb and Edward the first in his Stat. at Westminster and other Statutes the first spake fair and seemed to redress some of these complaints as also did Edward the second and yet the Common Law lost little ground thereby That which Henry the third did besides his promises of reforming was done in the Stat. of Marlbridge The successors of Abbots Priors and Prelates c. shall have an Action of Trespass for Trespasses done nigh before the death of their decessors upon the Estates of their Corporations And shall prosecute an Action begun by their Predecessors And also shall have an Assize against Intruders into any of the Possessions belonging to the said Corporations whereof their Predecessors died seized This might seem a remedy provided against the first Malady complained of and questionless bound all but the King and so might perchance abate somewhat the edge of that Article But it being the Clergies reach to grow rich and the Pope's cunning to help on that Work that they might be as stores for supply of his Treasury and had forbidden Abbots and other Prelates c. the liberty of disposing their Estates by last Will Kings therefore as supreme Patrons to these bodies in their vacancies used to seize all the Estates of the Prelates with the Temporalities to their own use as well to preserve the Riches of the Kingdom to it self and the possessions of such Corporations from spoil as to be a cloke of their own covetousness And under the Estates of the Prelates or Heads of these Corporations all the Goods and Chattels belonging to the said Corporations were comprehended in regard that all was by Law adjudged to be in the sole possession of such Head and without whom all the rest were accounted but as dead persons No Clergie-man is bound to attend at the Sheriff's Turn William the Conquerour first exempted the persons of the Clergy from attendance upon Temporal Courts yet they were still urged thereto and especially by a Law in Henry the first 's time but by this Law they are discharged and in some measure a provision made against the grievance in the 39th Article before-mentioned These amends we find made to the Clergie by Henry the third besides his confirming the Grand Charter And his Son Edward the first pursued the same course especially in his first times when he was but tenderly rooted as may appear in the Statute of West 1. Clergie-men nor their Houses shall be charged with Quarter nor their Goods with Purveyance or Cart-service under peril of imprisonment and damages by action or imprisonment The great endowments of Lands Rents and Revenues given to the Church-men by the Laity was for the maintenance of Hospitality and works of Charity The Founders and Benefactors hereby obtained a right of Corody or Entertainment at such places in nature of Free-quarter which in the necessitous times of Henry the third became so common that every one that had power never questioned right and the King above all the rest By means whereof the Church-revenues were exceedingly wasted for remedy whereof all Offenders are by this Statute made liable to fine and imprisonment and double damages in case of Action of Trespass the King onely excepted against whom they had no defence but would rather have won him to have been their defence against the exactions from Rome that
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 calls for help of all but first of the Clergie and bespeaks 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 Ecclesiastical cognizance extendeth unto Tythes Oblations and Mortuaries and to pecuniary recompence In the first times neglect or denial of Church-duties was punished in the King's Court by Fine Afterwards the Bishop was joyned in that Work and the Tythable Goods were seized eight parts whereof were taken to the Lords and the Bishops use by moyeties a ninth part left to the Owner and the tenth to the Church Nor had the Bishops any peculiar Courts of cognizance 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 Conquerour's Law to the Bishop's Court yet we find no Law for Tythes and other profits to be recovered by the Ecclesiastical Court till about the end of Henry the second 's Reign or King Steven's time For at a Council at London in Henry the second 's time it was ordained that three Summons in the Pope's name should be made to such as payed not their Tythes and in case they then refused they should be Anathema And after that time in a Council at Oxford under Steven Archbishop of Canterbury it was decreed that the Laity should be entreated first to pay their Tythes and then if necessity require that they should be compelled by Ecclesiastical 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 worn and spent with the Barons Wars about his latter end yielded to Boniface the Archbishop his importunate demands and first gave liberty to the Clergie to be their own Judges and yet the Lay-Judges although divers of them were Clergie men did not suddenly forbear till this Law came which gave some satisfaction to the first and fourth Articles of Complaint foregoing Ecclesiastical cognizance extendeth not to a fourth part of the Tythes of any Living nor to pecuniary mulcts for sin saving by way of commutation The Complaint of the Clergie in Henry the third's time was against the King's prohibition in case of Tythes indefinitely for in those times and afterwards in Edward the first 's time the King's Court had the cognizance of all Tythes and therefore in the Statute of West 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 Temporal Judge had yielded unto the Clergie the cognizance of a portion of Tythes under the value of the fourth part for in the Article next foregoing the Clergies complaint was that the Kings Justices held cognizance of the fourth part and here they were confined thereto by this Law which the Clergie could never remove For violence done to Clerks the offender shall render damage in the Kings Court but Excommunication Penance and Commutation shall be in the Bishops Court. The Canon-Law had an ancient claim to the protection of Clerks both as touching their persons and estates and prevailed so far as they were thereby emboldened to offer violence unto others But as I formerly shewed by a Law in Henry the Second's time the Temporal Judge resumed his original power and this became a sore evil between the Clergie and Laity for though it were allowed that Clerks should not be sued but before the Ecclesiastical Judge in such cases yet it was no warrant for the Laity likewise to be called before the Ecclesiastical Judge in such cases and therefore the Clergies complaints shew that the matter was doubtful and that the Lay-Judge generally maintained his Jurisdiction although sometimes he disclaimed it as it may appear in the case of a Trespass in the nature of a riot committed upon the Priory of St. John's of Jerusalem in the seventh year of Henry the Third when as it was adjudged per Curiam that it belonged to the Ecclesiastical Court to punish But in Edward the First 's time by the Ordinance of Circumspecte agatis and Articles concerning prohibitions the difference was made between damages and pro reformatione and the same affirmed by this Law and so the matter setled and the fourth Article of the Clergies complaint in some measure was satisfied Defamation within Cognizance of the Ecclesiastical Court and corporal penance therefore and Commutation The words are general and peremptory with a non obstante the Kings prohibition and yet the Law afterwards restrained the sence to defamation for crimes or offences triable in the Ecclesiastical Court and this gave further satisfaction to the fourth Article of the Clergies complaint foregoing Tythes of new Mills may be recovered in the Ecclesiastical Court. This Tythe of Mills was a new encroached Tythe never mentioned in any former Law of this Kingdom nor demanded by the Synod at London Anno 1173. which mentions Fruit-Trees young broods of living creatures that are tame Herbage Butter Cheese with other particulars but mentions not new Mills It is true that anciently Mills paid Tythes but such they were which were ancient and had paid the same by custom and such as by Law in the Confessors time were declared to be given a Rege Baronibus populo But by the second Article of the Clergies complaint next foregoing it appears that the Kings Mills refused to pay this Tythe now whether the new Mills were called the Kings Mills as being made upon the publick streams by the Kings license or whether the Mills newly made within the Demesnes of the Crown it is not to be insisted upon but it is evident that till this Law made the new Mills would not Tythe their labours One and the same matter may be tryed at the Common-Law after Sentence in the Spiritual Court in divers respects The great sore that was complained of was that the Clergie after purgation in the Ecclesiastical Court made were proceeded against in the Kings Court in case of breach of peace or Felony as may appear out of the 16th Article of the Clergies first complaints and the 8th Article of that taken out of Baronius Nevertheless the present Law subjoyns an example of the questioning a Lay-man in the Ecclesiastical Court in case of violence done to a Clerk as a matter which may be tryed in the Ecclesiastical Court and yet reviewed by the Kings Court. The Writ de Excommunicato deliberando shall not issue forth but upon evident breach of the Kings Liberty This might be intended in satisfaction of the Tenth Article of the Clergies complaint
in Baronius and the Tenth Article in the Clergies complaint first recited although that complaint both in the 10 11 12 and 33 Articles seem to be but clamour upon Officers and not the Kings Court of Justice Clerks Officers to the Exchequer are to be corrected by their Ordinaries and yet not tyed to residence during their attendance on the Exchequer This is in part an answer to the second Article of the Clergies last complaint and a justification thereof as a thing that is pro bono publico Clergie-mens Goods shall not be Distrained either in the High-way or Sanctuary-grounds unless such as have been of late purchase The complaint exhibited in Henry the third's time and the 8th Article was only in ordinary personal Actions but in the complaint made in Edward the second 's time Article 12. is that it is without cause that they are so distrained This Law yieldeth them somewhat viz. immunity from distress within their ancient possessions which had been by ancient custom priviledged but yields nothing as touching their latter purchased Lands because they had no such custom High-ways and Sanctuaries shall be free for such as abjure so as they shall neither be restrained from liberty nor necessaries kept from them Felons may make free confession to the Priest without danger The grievance in the 22th Article of the Clergies complaint in Henry the Thirds time and the ninth in that of the times of Edw. 2. are hereby relieved provided that the Delinquent keeps himself in due order Houses of Religion shall not be oppressed with Corodies Pensions or entertainments of great men This answered the grievance in the 42. and 43. of the first complaint and the 18th of the latter and in effect little other than what was formerly setled by West 1. cap. 1. The Kings Tenant may be cited before the Ordinary out of their own Town and if Excommunicated for want of appearance the Writ de Excommunicato Capiendo shall be awarded A remedy this was against the grievances in the 12 and 33 Articles of the first complaint and in the 10th Article of the last schedule of complaints And thus the Clergie have gotten the day of the Kings Tenants which they had been striving for ever since the Conquest as may appear by what hath been formerly said and now the Kings Tenants are in no better condition than other men viz. they may now be Excommunicated without the Kings license nor is the answer Nunquum fuit negatum to be referred to the point of Excommunication for that power was denyed them but unto the citing them out of their own Parish which cannot be found to be denyed to the Clergie by any thing that yet appeareth A Clerk presented and found unable by the Ordinary shall be tryed again by the Ecclesiastical and not the Lay-Judge Although the fitness or sufficency of the party presented is to be examined by the Ordinary yet the Civil Magistrate hath power in action brought to enquire and determine whether the Ordinaries work was rightly done and so the 17th Article of the last complaint answered Elections shall be free The Laws was of the same with this in the Stat. W. 1. cap. 5. which see before and it may be that the iniquity of the times continued notwithstanding and so occasioned the renewing of this Law. A Clerk having taken Sanctuary shall not be compelled to adjure Nor after confession of the Crime or appealing others before the secular Judge shall be denyed his Clergie Although the Temporal Courts proceeded not so far as to pass sentence against a Clerk that had taken Sanctuary yet they proceeded to enquiry as may appear by what was said formerly concerning the Stat. West 1. cap. 2. and therefore though this Law in the 15th Chap. alloweth that a Clerk in Sanctuary shall enjoy his Ecclesiastical liberty yet the words legi Regni se reddens are interposed and the reason is because the King upon Indictment found had right to the Delinquents goods and profits of his Lands until due purgation and then his Lands were by a Writ out of the Chancery to be restored to him again nor could any purgation regularly pass before the party was Indicted No Religious House shall be charged with Tax to any Superiour without the Realm of England nor shall send to any visitation out of England This was neither at the request of the Clergie nor act of kindness intended unto them but for the good of the Kingdom to prevent the bleeding of the Treasure of the Kingdom into Foraign parts Patrons of Abbies shall have their custody during their vacancies This was the ancient Law now revived by the Clergies consent and intended for the safeguard of the Revenues of the Houses and their maintenance and therefore it is with a sicut superius dictum est cap. 5. The Goods of the Clergie freed from purveyance unless they will. It was a favour given by Edw. 2. to the Clergie to gain their good will after the death of Gaveston the shameful defeat received in Scotland and some particular testimonies of God's displeasure whereof he began to be somewhat sensible Franchises holden by prescription or Charter confirmed and Tryals by Quo Warranto allowed to be in Eyer It was the common share of the great men but especially of the Clergie to have their Franchises exposed to the prey of the Eagles or to such as hawked for them and it is likely the King had not so easily for gone his prize if all the fat had fall'n to his own share but perceiving that more benefit came to his instruments than was meet and himself little the better thereby he sacrificed his Judges to the people but it was to his own behoof and so gained both credit and favour from the people and profit to himself and in some measure satisfied the 48 49 50. Articles of the Clergies complaint in the time of Henry the Third and the 15th Article of their last complaint Lands or Tenements aliened to a Religious house shall escheat to the Lord if the alienor take the same back to hold of that House The ground hereof principally was the prejudice done to the Lord by destruction of the Tenure albeit that it had been an ancient grievance complained of in the Saxon times That the Clergie were covetous and swallowed down estates and thereby weakned the Kingdom But now they are become even cheaters serving the turns of treacherous Tenants that would give their Lands by compact with the Church-men to receive them again from them to hold of the Church which was a liberty that men thirsted after in those times wherein the Church-men were more adored than their Images It seems this Law was made after Bracton's time if that be true in the second Institutes for he saith that a man may give his Lands to any one whether Christian or Jew or religious person
and Kent are saved out of this Law by the Statute the first whereof saves the Land to the Heir from the Lord and the second saves the same to the Heirs Males or for want of such to the Heirs Females and to the Wife her moity until she be espoused to another man unless she shall forfeit the same by fornication during her Widow-hood And by the same Law also the King had all Escheats of the Tenants of Archbishops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden All Wears shall be destroyed but such as are by the Sea-coast The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the Wears to his own use as appeareth by a Charter made to the City of London recited in the second Institutes upon this Law and this was to the detriment of the Free-men especially of the City of London in regard that all Free-men were to have right of free passage through Rivers as well as through Highways and purprestures in either were equally noxious to the common liberty And therefore that which is set down under the example or instance of the Rivers of Thames and Medway contained all the Rivers in England albeit that other parts of the Kingdom had not the like present regard as the City of London had The Writ of precipe in capite shall not be granted of any Freehold whereby a man may be in danger of losing his Court thereby It seemeth that it was one of the oppressions in those times that if a Suit were commenced in the inferiour or Lords Court concerning a Freehold a Writ of precipe in capite might be had upon a Surmise that the Freehold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoil of the Demandants case and therefore I think the Charter of King John instead of the word Court hath the word Cause There shall be but one known Weight and Measure and one breadth of Cloaths throughout the Realm of England This Law of Weights and Measures was anciently established amongst the Saxons as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John. And as touching the measure of the breadth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudicial to the common Trade of the Kingdom it was setled in this manner to avoid deceit and to establish a known price of Cloaths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the Measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of Life and Member shall be readily granted without Fees. This was a Law of latter original made to take away a Norman oppression for by the Saxon Law as hath been already noted No man was imprisoned for Crime not bailable beyond the next County-court or Sheriff's Torn but when those rural Courts began to lose their power and the Kings Courts to devour Tryals of that nature especially by the means of the Justices itinerant which were but rare and for divers years many times intermitted during all which time supposed Offenders must lie in Prison which was quite contrary to the liberty of the Free men amongst the Saxons This occasioned a new device to save the common liberty by special Writs sued out by the party imprisoned or under bail supposing himself circumvented by hatred and malice and by the same directed to the Sheriff and others an Inquisition was taken and Tryal made of the Offence whether he deserved loss of Life or Member and if it were found for the supposed Offender he was bailed till the next coming of the Justices and for this the Writ was called the Writ of inquisition of Life or Member and sometimes the Writ de odio atia But these Inquests were soon become degenerate and subject to much corruption and therefore as soon met with a countercheck from the Law Or first rather a regulation for it was ordained that the Inquest should be chosen upon Oath and that two of the Inquest at least should be Knights and those not interessed in the Cause But yet this could not rectifie the matter for it seemed so impossible to do Justice and shew Mercy this way that the Writ is at length taken away and men left to their lot till the coming of Justices itinerant But this could not be endured above seven years for though the King be a brave Souldier and prosperous yet the people overcome him and recover their Writs de odio atia again Lords shall have the Wardships of their Tenants Heirs although they hold also of the King in Petit Serjeanty Socage Burgage or Fee-farm Inferiour Lords had the same right of Wardships with the King for their Tenures in Knight-service although their Tenants did hold also of the King unless they held of him in Knight-service which was a service done by the Tenant's own person or by the person of his Esquire or other deputy in his stead But as touching such service as was wont to be done to him by render or serving him with Arms or other utensils this was no Knight-service though such utensils concerned War but was called Petit Serjeanty as in the Law-books doth appear Nevertheless Henry the Third had usurped Wardships in such cases also and the same amongst others occasioned the Barons Wars No Judge shall compel a Free-man to confess matter against himself upon Oath without complaint first made against him Nor shall receive any complaint without present proof This Law in the Original is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in express words it is thus No Judge shall compel any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter enquired after and therefore they used in such cases to put him to Oath and if he denied the matter or acquitted himself the Judge would sometimes discharge him or otherwise put him to his Compurgators and this was called lex manifesta or lex apparens And it was a trick first brought in by the Clergie and the Temporal Judges imitated them therein and this became a snare and sore burthen to the Subjects To avoid which they complain of this new kind of Trial and for remedy of this usurpation this Law reviveth and establisheth the onely and old way of Trial for Glanvil saith Ob infamiam non solet juxta legem terrae aliquis per
legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia and therefore no man ought to be urged upon such difficulties unless by the express Law of the Land. The old way of Trial was first to bring in a Complaint and Witnesses ready to maintain the same and therefore both Appeals and Actions then used to conclude their pleas with the names of Witnesses subjoyned which at this day is implied in those general words in their conclusions Et inde producit sectam suam that is he brings his sect or suit or such as do follow or affirm his complaint as another part also is implied in those words Et hoc paratus est verificare For if the Plaintiffs sect or suit of Witnesses did not fully prove the matter in fact the Defendant's Averment was made good by his own Oath and the Oaths of Twelve men and so the Trial was concluded No Free-man shall be imprisoned or disseised of his Freehold or Liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peers Nor shall Justice be sold delayed or denied This is a comprehensive Law and made up of many Saxon Laws or rather an enforcement of all Laws and a remedy against oppression past present and to come And concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the Law and his liberty likewise so as he shall be shut into no place by Imprisonment nor out of any place by Banishment but shall have liberty of ingress and egress His Estate both real and personal shall also be under the protection of the Law and the Law also shall be free neither denied nor delayed I think it needless to shew how this was no new Law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the sum of all the foregoing discourse tendeth thereto Merchants shall have free and safe passage and trade without unjust Taxes as by ancient custome they ought In time of War such as are of the Enemies Countries shall be secured till it appear how the English Merchants are used in their Countries That this was an ancient Law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon Laws So as it appeareth that not onely the English Free-men and Natives had their liberties asserted by the Law but also Forreiners if Merchants had the like liberties for their persons and goods concerning Trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the Law as the Free-men had And unto this Law the Charter of King John added this ensuing It shall be lawful for every Freeman to pass freely to and from this Kingdom saving Fealty to the King unless in time of War and then also for a short space as may be for the common good excepting Prisoners Outlaws and those Country-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this Law of free passage out of the Kingdom was not anciently fundamental but onely grounded upon reason of State although the Freemen have liberty of free passage within the Kingdom according to that original Law Sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the Third as was also another Law concerning the Jews which because it left an influence behind it after the Jews were extinct in this Nation and which continueth even unto this day I shall insert it in this short sum After death of the Jew's debtor no usury shall be paid during the minority of the Heir though the debt shall come into the King's hand And the debt shall be paid saving to the Wife her Dower and maintenance for the Children according to the quantity of the Debtors Land and saving the Lord's service and in like manner of debts to others The whole doctrine of Vsury fell under the Title of Jews for it seemeth it was their Trade and their proper Trade hitherto It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times but by the Confessor's Law it was made penal to Christians to the forfeiture of Estate and Banishment and therefore the Jews and all their substance were holden to be in nature of the King Villains as touching their Estate for they could get nothing but was at his mercy And Kings did suffer them to continue this Trade for their own benefit yet they did regulate it as touching Infants as by this Law of King John and the Statute at Merton doth appear But Henry the Third did not put it into his Charter as I think because it was no liberty of the Subjects but rather a prejudice thereto and therefore Edward the First wholly took it away by a Statute made in his time and thereby abolished the Jews Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly In all alienations of Lands sufficient shall be left for the Lords distress Submitting to the judgement of the learned I conceive that as well in the Saxon times as until this Law any Tenant might alien onely part of his Lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord Paramount other than was formerly due to him without the Lord's consent and for the same reason could they not alien the whole Tenancy to bind the Lord without his express license saving the opinion in the book of Assizes because no Tenant could be enforced upon any Lord lest he might be his Enemy Nevertheless it seemeth that de facto Tenants did usually alien their whole Tenancy and although they could not thereby bar the Lord's right yet because the Lord could not in such cases have the distress of his own Tenant this Law saved so much from alienation as might serve for security of the Lord's distress But Tenants were not thus satisfied the Lords would not part with their Tenants although the Tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all saving to the Lords their services formerly due and thus the Lords were necessitated to grant Licenses of alienation to such as the Tenants could provide to buy their Lands Nor was this so prejudicial to the Lords in those days when the publick quiet was setled as it would have been in former times of War whenas the Lord's right was maintained more by might and the aid of his Tenants than by Law which then was of little power The 35th Chapter I have formerly mentioned in the Chapter concerning
and imprisoned Before this Law this crime was but finable unless the fact was committed upon a Virgin for then the member was lost And this was the Saxons Law but the Normans inflicted the loss of the member upon all Delinquents in any Rape Nor was this made Felony by any Law or Custom that I can finde till about these days It is true that Canutus punished it capitis aestimatione by way of compensation which rather gives a rule of damages to the party wronged than importeth a punishment inflicted for an offence done against the Crown as if it were thereby made capital But for the more certainty of the penalty another Law provideth that if the Rape be committed without the Womans consent subsequent she may have an Appeal of Rape And though a consent be subsequent yet the Delinquent upon indictment found shall suffer death as in the case of Appeal But if a Wife be carried away with the goods of her Husband besides Action of the party the King shall have a fine If the Wife elopeth she shall lose her Dower if she be not reconciled before her Husband's death All which now-recited Provisoes are comprehended together in one Chapter and yet the Chapter is partee per fess French and Latine So far thereof as concerneth death was written in French being the most known Language to the great men in general many of whom were French by reason of the interest that Henry the Third had with France in his late Wars against the Barons It was therefore published by way of Caveat that no person that understood French might plead ignorance of the Law that concerned their lives The residue of that Chapter was written in Latine as all the other Laws of that Parliament were upon grounds formerly in this discourse noted One Proviso more remaineth which is also comprehended in the same Chapter with the former viz. Any person that shall carry away a Nun from her house shall suffer imprisonment for three years and render damages to the house This crime was formerly onely inwombed in the Canon-Law and now born and brought forth into the condition of a Statute-Law rather to vindicate the right of the Freemen than in any respect had to the Clergie who had been very bold with the liberty of the Freemen in this matter For Archbishop Peckham not a year before the making of this Law for this offence had excommunicated Sir Osborn Gifford nor could he get absolution but upon his Penance First he was disciplin'd with rods three times once in the open Church at Wilton then in the Market-place at Shaftsbury and lastly in the publick Church there Then he must fast divers moneths Lastly he must be disrobed of all Military habiliments viz. Guilt Spurs Sword Saddle golden Trappings and to use no brave garments but russet with Lamb and Sheep-skins to use no Shirit nor take up his Order again until he had spent three years Pilgrimage in the Holy Land and unto this Penance the Knight by Oath bound himself A strange power and to repress which it was time for the people to look about them and rather to punish Delinquents themselves than to leave it to the will of such men as never had enough Concealment or neglect of apprehending of Felons punished by Fine and Imprisonment In those ancient times pursuits of Felons with Hue and Cry were made by Lords of Manors Bailiffs of Liberties Sheriffs and Coroners whereas now they are made by Constables See more in the Chapter of Peace Escapes also were punished with Fine and Imprisonment and in some places the Lord had the Fine in other places the Sheriff and in some cases the King yet in no case was any Fine assessed or taken till the Trial before the Justices Persons defamed for Felony not submitting to Trial by Law shall be committed to close and hard Imprisonment It hath been accounted an extream construction of this Law and questionless so it is that this Law should warrant that punishment of pressing to death which hath been of later times more constantly used than former times ever knew of for though it be granted that some trick of torture was sometimes used even before the Normans times and so might now and then leave some few examples after the Norman times yet did the Law never patronize such courses especially if the death of the party suspected ensued thereupon but accounted it Manslaughter And the end of this Law was not to put a man to death but to urge him to confess and so Briton saith Such as will not submit to Trial shall be put to Penance till he shall pray to be admitted thereunto and therefore the Penance then used was such as did not necessarily infer death nor was it a final Judgement in the Trial but onely a means thereto and therefore it might rather consist in denial of conveniencies than inflicting of pain Now in what cases it was used may be understood from the manner of the Indictments in those days whereof besides Appeals by the party some were of particular fact done others onely of a Fame and it may be conceived that the course in the second was that if a man would not submit but would stand mute he was put to this kind of Imprisonment for the discovering Law was by Henry the Third taken away But if the Delinquent was positively accused of a Felony and thereupon indicted by a witness of the Fact and then if the Delinquent would not submit to his Trial by Law in such case the final Judgement was to die Onere fame c. because in the one was a Fact affirmed against him by a Witness and in the other onely a Fame or suspicion which is not pregnant against the life of a man. But this manner of Indictment being now laid aside and all proceedings being upon a Fact affirmed against the party I conceive this Law of no use at all in these days Bail shall not be allowed to Outlaws fore-jured Thieves taken in the act notorious Thieves appealed persons burners of Houses breakers of Prison false Coyners counterfeiters of the Broad-seal prisoners upon excommunication open Malefactors and Traitors against the King. The six first are in nature of persons attainted either upon their own confession or such manifest Evidence as in common reason cannot be gainsaid all which were before this Law under bail yea the last of all although the most heinous of all was in the same condition As touching breakers of Prison in these times it was Felony for what cause soever they were committed and therefore their imprisonment was without bail for whoso makes no Conscience of breaking the Prison his credit will little avail Yet it must be acknowledged that the Law imprisoned few without bail in those foregoing times but in case of Felony or Execution but afterward the cases of commitment being ordinary even in matters of mean process and because mens credits
concerning Calvin's Case fol. 45 IX Of Courts for Causes criminal with their Laws fol. 54 X. Of the course of Civil Justice during these times fol. 56 XI Of the Militia in these times fol. 58 XII Of the Peace fol. 62 XIII A view of the summary courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns fol. 68 XIV Of the Parliament during the Reigns of these several Kings fol. 75 XV. Of the Custos or Protector Regni fol. 79 XVI Concerning the Privy Council fol. 83 XVII Of the Clergie and Church-government during these times fol. 86 XVIII Of the Court of Chancery fol. 95 XIX Of the Courts of Common-pleas and Common Law. fol. 97 XX. Concerning Sheriffs fol. 98 XXI Of Justices and Laws concerning the Peace fol. 99 XXII Of the Militia during these times fol. 102 XXIII A short Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third fol. 106 XXIV Of the Government in relation to the Parliament f. 109 XXV Of the condition of the Clergie fol. 112 XXVI A short sum of the Reigns of Henry the Seventh and Henry the Eighth fol. 113 XXVII Of the condition of the Crown fol. 118 XXVIII Of the condition of the Parliament in these times fol. 130 XXIX Of the power of the Clergie in the Convocation f. 134 XXX Of the power of the Clergie in their ordinary Jurisdiction fol. 136 XXXI Of Judicature fol. 141 XXXII Of the Militia fol. 143 XXXIII Of the Peace fol. 148 XXXIV Of the general Government of Edward the Sixth Queen Mary and Queen Elizabeth fol. 152 XXXV Of the Supream power during these times fol. 157 XXXVI Of the power of the Parliament during these times fol. 162 XXXVII Of the Jurisdiction Ecclesiastical during these last times fol. 166 XXXVIII Of the Militia in these later times fol. 168 XXXIX Of the Peace fol. 173 XL. A summary Conclusion of the whole matter fol. 174. THE CONTINUATION OF AN Historical and Political Discourse OF THE Laws Government OF ENGLAND THE former times since the Norman entry like a rugged Sea by cross Winds of Arbitrary Vapours in and about the Crown and by Forrein Engagements from the holy Chair made the true face of affairs cloudy and troublesome both for the Writer and the Reader Henceforward for the space of Three hundred years next ensuing Kings by experience and observation finding themselves unequal to the double chace of absolute Supremacy over the sturdy Laity and encroaching Clergie you will observe to lay aside their pretensions against the Peoples Liberties and more intentively to trench upon the Spiritualty now grown to defie all Government but that of Covetousness Nor would these times allow further advantage to Kings in this work they being either fainted by the ticklish Title of the Crown hovering between the two Houses of York and Lancaster or drawn off to forrein employments as matters of greater concernment for the present well-being of the Kingdom or for the spreading of the fame of such as desired to be renowned for valiant men It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiastical men the former Treatise hath already said what was thought needful concerning that For the future I shall even premise this that the ensuing times being thus blessed with a Truce or stricter League between the Kings and Commons the errours in Government more readily do appear the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Laws begins to swell so big that I must be enforced to contract my account of them into a narrower compass and render the same unto the Reader so far forth only as they shall concern the general stream of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For whatever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his Actions yet the Government of a Kingdom is onely manifested by ancient Customs and publick Acts of Parliament And because I have undertaken a general Survey of the Reigns of thirteen several Kings and Queens of this Nation for I shall not exceed the issue of Henry the Eighth and to handle each of them apart will leave the Reader in a Wilderness of particulars hard to comprehend in the general sum I shall therefore reduce them all into three heads viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of York And because Edward the Third and his Grand-child Richard the Second do come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the latter was as different from the former as Lust falls short of a generous Spirit CHAP. I. A sum of the several Reigns of Edward the Third and Richard the Second SEveral I may well call them because they are the most different in their ways and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the lot of his Son Edward the Third a youth of Fifteen years of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should return but being overswayed by Counsels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himself rather than to adventure it in another hand But that is not all for as it is never seen that the Crown doth thrive after divorce from the Scepter but like a blasted Blossom falls off at the next gale of adversity such was the issue to Edward the Second his power once gone his Honour followeth soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleat by his Fathers spoil had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might think by his story to be seldom at home and by his Laws seldom abroad Nor can it be reconciled without wonder that Providence should at once bestow upon England a courageous People brave Captains wise Council and a King that had the endowments of them all Otherwise it had out-reached conceit it self that this small Island wasted by the Barons Wars the people beaten out of heart by all Enemies in the time of the Father should nevertheless in the time of the Son with honour
conclusion he now sees it bootless to stand always upon his defence and receives affronâ—s he resolves therefore to enter the lists and maketh seizure of the Deanery of York which formerly by usurpation the Pope had conferred upon a Cardinal and of all Church-livings given by the Pope to aliens Then a Law is made more sharp than those in the eighteenth year wherein Provisors of Abbies and Priories are made liable to a Proemuniri and Provisors of other Ecclesiastical Livings and Dignities whereby the presentation of the rightful Patron is disturbed to be fined and imprisoned until the fine and damages to the party wronged be paid And all such as draw men to plead out of England in cases that belong to the cognizance of the Kings Court and all obtainers of provisions in the Court at Rome these were also subject to a Proemuniri For whilst these things were thus in action the Pope bestirred himself notably with Citations Excommunications Interdictions and such other birds of prey not only against mean men but Judges Bishops and the King's Council as amongst others the case of the Bishop of Ely at the solicitation of some of some of inferiour regard as I remember a Clerk or some such thing Yet as these Bull-drivers or Summoners to the Romish Court were no late upstarts so were not these times the first that took them to task for before the Statutes of Proemuniri we find provision was made against Provisors and that some Statute did precede those in Print which punished a disturber of the King 's Incumbent by a Bull from Rome with perpetual Imprisonment or at the King's will. Besides the party wronged was allowed an Action for his Damages Qui tam pro Domino Rege quam pro seipso sequitur And before that time also bringers of Bulls from Rome were imprisoned although in all these cases aforesaid the liberty of the Persons both of Lords and Prelates was saved And thus all the while King Edward the Third kept the Field he gave the Pope cuff for cuff but retiring himself to take his ease he waxing wanton waxed weak and more slowly pursued the vindication of his own Right and his Subjects Liberty The Laws are laid aside and Rome had further day given to plead and in the mean time Execution is staid the double mind is double dyed and advantage is soon espyed above sixty Church-livings more are suddenly catched and given to the Favourites at Rome The Parliament rings herewith yet the King delays the remedy and in this Eddy of affairs Edward the Third dies and Richard the Second takes up the place who had wit enough to observe what concerned his own interest and courage enough to pursue it but neither wit nor courage to over-rule his Lusts which in the conclusion over-ruled all rule and brought himself to destruction He found the people at his entrance into the Throne irritated with the Pope's oppressions and vexed at his Grandfather's desidiousness his spirit is also stirred within him and himself thereby pressed to tread in his Grandfather's former ways and to out-run him in his latter He made the penalty of Proemuniri to extend to all Farmers or others in nature of Bailiffs that held any Church maintenance to the use of any Alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such Provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Roman Horse-leech would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on horseback and fear that the English Clergie their own Country-men if not Friends and Abettors yet are buâ— faint and feigned Enemies to the Pope's Cause Nor was it without cause that their fear was such for as the Pope had two hands to receive so they had two hearts making shew of forming blows at the Pope but then always at a distance or when without the Pope's Guard and thus the Laws begin to stammer and cannot speak so plain English as they were wont The people hereat offended resolve to put the Clergie into the Van and to try their mettle to the full At the last parliament that Richard the Second did hold both the Lords Temporal and Spiritual are opposed one by one The Lords Temporal like themselves resolve and enter their Resolutions to defend the Right of the Crown in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Pope's Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly enacted And though the Prelates cautionary way of proceeding might be a principal reason why the Pope's power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their personal ease above the honour of their place and the Pope's blessings and opinion of his favour more than their own good or the peoples Liberty for there was no other balm for a distracted mind than that which dropped from the Pope's Lips. In like manner Richard the Second being already at least in purpose estranged from his people sought to get friends at Rome to hold by the Spiritual Sword what he was in danger to lose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedom was now under a Schism between two Popes Clement and Vrban yet he was so far won for Vrban that he not onely engaged himself and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite power to grant provisions and so at once he lost the Die and gained a Stake that like a bubble looked fair but soon vanished away Nevertheless these two Comrades whilst they were togather resolved to make the most of each other that they could and therefore though the Popedom liked not the King yet the Pope had his love so far as he could deny himself for he had already denied his Kingdom And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Archbishop Arundel he trusted the Pope with that Complement of making Walden Archbishop of Canterbury in Arundel's stead which the Pope took so kindly as he made it a Precedent for Provisors for the future Nor did the King stick in this one Singular but made it his custom in passing of Laws
the issue will be And therefore though it in the general be more beneficial that all Exportation and Importation might be by our own Shipping yet in regard times may be such as now they were that the Shipping of this Nation is more than ordinarily employed for the service of the State And that every Nation striveth to have the benefit of Exportation by Vessels of their own And Lastly in regard the case may be such as Importation may be at a cheaper rate by forein Vessels and Exportation likewise may for the time be more prejudicial to this Nation if done by our own Shipping than those of other Nations Therefore the course must be changed so far forth as will stand with the occasions of the State and common profit of this Nation And for these causes and such-like in the times whereof we now treat the Laws often varied Sometimes no Staple-Commodity must be Exported in English bottoms sometimes all must be done by them and within a year again that liberty was restrained and after that liberty given to Foreiners to Export as formerly The third and last Consideration is as necessary as any of the former for if Trade be maintained out of the main Stock the Kingdom in time must needs be brought to penury because it is their Magazine And for this cause it was provided That all Wool should remain at the Staple 15 days to the end it might be for the Kingdoms use if any one would buy they must do it within that time otherwise it might be exported The sixth means of advancement of Trade was the setling of the Staple for as it was an encouragement to the first establishing of the Manufacture that the Staples were let loose so when the Manufactures had taken root the Staple especially now fixed to places within this Kingdom brought much more encouragement thereto First For preserving a full Market For whilst the Commodity lies scattered in all places the Market must needs be the leaner partly in regard the Commodity lies in obscurity and partly because when it is known where yet it is not easily discovered whether it be vendible or not and besides small parcels are not for every man's labour and the greater are not for every man's money Secondly Staples are convenient for the slating of the general price of the Commodities in regard the quantity of the Commodity is thereby the more easily discovered which commonly makes the price And the quantity of the Commodity thus discovered will not onely settle the price to it self but also ballance the price of the Manufacture Thirdly The Staple having thus discovered the quantity of the Commodity will be a ready way to settle the quantity of the main Stock that must be preserved and regulate Exportation as touching the overplus But it cannot be denied that the first and principal mover of the making of the Staple was the benefit of the Crown For when the Commodity was gone beyond the Sea it importeth not to the Subjects in England whether the same be sold at one place or more or in what place the same be setled until the Manufacture was grown to some stature and then the place became litigious The benefit of Exportation pretended much interest in the setling thereof beyond the Sea but in truth it was another matter of State. For when it was beyond Sea it was a moveable Engine to convey the King's pleasure or displeasure as the King pleased for it was a great benefit to the Countrey or place where-ever it setled or else it moved or stayed according to the inclination of the People where it was either for War or Peace But on the contrary the Interest of the people began to interpose strongly And for these causes the Parliament likewise intermeddled in the place and thus the Scene is altered Sometimes it is beyond the Seas in one place or in another sometimes in England In Edward the Third's time we find it sometimes at Calis sometimes in England In Richard the Second's time we find it again beyond the Seas at Middleburgh thence removed to Calis and after into England Where at length the people understood themselves so well that the Parliament setled the same it being found too burthensome for the Manufactures to travel to the Staple beyond the Seas for the Commodity that grew at their own doors besides the enhansing of the price by reason of the Carriage which falling also upon the Manufactures must needs tend to the damage of the whole Kingdom This was one way indeed and yet possibly another might have been found For if a Computation had been made of the main Stock and a Staple setled within the Kingdom for that and the overplus exported to a Staple beyond the Sea it might have proved no less commodious and more complying It is very true that there are many that call for the Liberty of the people that every man may sell his own Commodity as he pleases and it were well that men would consider themselves as well in their Relations as in their own Personal Respects For if every man were independent his liberty would be in like manner independent but so long as any man is a Member of a Common-wealth his liberty must likewise depend upon the good of the Common-wealth and if it be not good for the Nation that every man should sell his own Commodity as he pleaseth he may claim the liberty as a Free-man but not as an English-man Nor is that liberty just so long as his Country hath an interest in his Commodity for its safety and welfare as in his own person I do not assert the manner of buying the Staple-Commodities by Merchants of the Staple to sell the same again in kind for their private advantage Divers limitations must concur to save it from an unlawful ingrossing nor doth it appear to me that the Staplers in these times used such course or were other than mere Officers for the regulating of the Staple in nature of a Court of Piepowders belonging to some Fair or Market Nevertheless I conjecture that it may well be made evident from principles of State that Marts Markets and Staples of Commodities that are of the proper Off-spring of this Nation are as necessary to Trade as Conduits are to places that want Water The seventh and last means that was set on foot in these times for the advance of Trade was the regulating of the Mint and the current of Money This is the life and soul of Trade for though exchange of Commodities may do much yet it cannot be for all because it is not the lot of all to have exchangeable Commodities nor to work for Apparel and Victual Now in the managing of this trick of Money two things are principally looked unto First That the Money be good and currant Secondly That it should be plentiful As touching the excellency of the Money several Rules were made as against
This reducing of Treason into a narrower ground made the Regiment of Felonies to swell A hard thing it was in a Warring time for men to conceit themselves well drest until they were compleatly armed Some used it for a Complement and amongst others honest men had as good cause to use it as some that were ill-affected had a bad and of the last sort some did aim at private revenge though many aimed against the publick quiet But however the intentions of men thus harnassed might be different the looks of them all are so sour that it is hard to know a man for Peace from a man for War. And therefore the people were now so greedy after Peace as they are ready to magnifie or multiply all postures of arm'd men into the worst fashion being well assur'd that the readiest way to keep themselves from the hurt of such men is to have none of them at all But Edward the Third had more need of them than so and will therefore allow men to ride armed but not to Troop together to rob kill or imprison any man and if any person did otherwise it should be Felony or Trespass but not High Treason All this was in favour to the people and yet it was not all for when Mercy groweth profuse it becomes Cruelty Murther is very incident to times of War yet is an Enemy to the Peace of so high a nature that though the King's Pardon may do much yet both King and People declare it an impardonable crime by the Common Law and that the King's Prerogative shall not extend so far as to pardon the same This Justice done to the party dead was a mercy to them that were alive a means to save bloud by bloudshed and not so much by the King's Grant as by his Release One thing more in these cases of bloud the people obtained of the King which they had not so much by Release as by Grant and that was the taking away of Englishire an ancient Badge of the Imperial power of the Danes over the Saxons and which had either continued through the desidiousness of the Saxons in the times of Edward the Confessor unto the Normans time or by them taken up again and continued until these times that Edward the Third was so far desirous to declare his readiness to maintain the Liberties of the people as to be willing to restore them where they failed and in particular took away the manner of presentment of Englishire blotting out the Title and Clause concerning it out of the Articles of Inquiry for the Judges Itinerant And thus whether Native or Foreiner all men are now made in death equal and one Law serves all alike Next unto bloud these times grew more sensible of Ravishments than former times had done For though they had determined a severe penalty against so foul a crime and made it in the nature of a Felony capital which was enough to have scared any man from such attempts yet for the proof of the matter in Fact much rested upon the will of the Woman which for the most part grounded upon self-respects and private prudence laboured to conceal that which could not be made whole by revealing and by after-consent skin'd over the sore as to themselves which corrupted inwardly and endangered the whole Body To cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joynture and Inheritance which otherwise had been saved to her by such compliance as after-consent unto such violations CHAP. X. Of the Course of Civil Justice during these times HOwever the course of the Law concerning matters of the Crown passed in a troubled Wave yet in matters of Common Pleas it passed in a Calm and full Channel as the Reports in Print do sufficiently witness nor was there any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the publick Policy the one touching the course of Inheritance in some particular cases the other touching pleading in the Courts of Civil Justice The first of these was occasioned from Conjuncture of Affairs the case being such that Edward the Third had now gotten himself a new Kingdom unto that of England and must look to maintain that by power which he obtained by force and conducing thereunto must have continual employment of the English in that Service as being most trusty to his Cause And that it is unreasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those foreign parts should thereby lose the benefit of Lieges in the Birth-right of their Children born in those foreign parts Upon consideration had thereof and of a former leading Opinion of the Lawyers Parliament a Declarative Law was made That all Children born without the Kings Legiance whose Father and Mother at the time of their birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and do occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveal it and the substance thereof resteth onely in this To enable the Children of English Natives born beyond the Seas not the Children of those that are of foreign birth though within the Kings Territories in those parts as the Opinion hath been Nor doth any ancient Precedent or Case warrant the same as might be at large manifested if it might conduce to the end of this Discourse And for the same cause after this Statute whenas the Commons would have had a general Naturalizing of all Infants born beyond the Sea within the Kings Segniories the same would not be granted otherwise than according to the former Statute and the Common Law. That which in the next place concerneth the manner of Expression is this That a Child is said to be born out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents born within the Kings Territories beyond the Seas because the words ensuing concerning Certification of Bastardy of such Children are That the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Territories And so the Issue will be That the Legiance of those born in those parts though they are Leiges to the King yet they
are not of the Legiance of the King of England but as Lord of that Territory The other matter to be observed concerning pleading in the Courts of Civil Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman Tongue they shall be henceforth in English out of an inconvenience I believe rather supposed than felt For though some kind of knowledge of Law-terms may be encreased thereby yet unless that shall be professedly studied it will breed nothing but Notions and they an over-weening conceit which many times sets men to Suits in Law to their own loss like some weak influence of the Celestial Bodies that are strong enough to stir up humours but not to expel them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgal CHAP. XI Of the Militia in these times WAR is ever terrible but if just and well governed Majestical the one may excite resistance and defence but the other conquers before blow given because it convinceth the Judgment and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at War with its own understanding nor can such a heart consider such a War otherwise than as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessful It is no strange thing for Kings to miscarry in their Wars because it is rarely seen that they are under good Counsel but if a Christian Counsel miscarry we may conclude it extraordinary in the efficient cause and no less wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of honour but of safety and continuance to settle fundamental Laws of War against time of War as of Peace in time of Peace Neither was England deficient herein saving that antient times were more obscure in the particulars and these days revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation For being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he nevertheless received the same submitting both it and himself to the Directory of the Parliament in making a War with France which was three to one against him in very respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his Rear The like may be observed of his War with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Foreign War without the concurrence of the common consent of the People and that not onely for the thing it self but also for his own Personal Engagement in the Service For a King though he be the Generalissimo yet is he so from the People and his Person being of that high value is not to be exposed to every occasion that may provoke War without due advice first had with the publick Council because in his Person the People adventureth as well as himself And in this manner were the Wars in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the Arrays of Men for War I find no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and Obligati ad arma could do little either in the calling of men forth or arming them for the War. But in case of publick defence against Foreigners men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such Obligations by writing called in and damned as dishonourable to the King. In foreign service the course was no less regular if the War was by special direction of the Parliament they likewise ordered the manner of the raising of Souldiers viz. so many out of a County and so many out of a Burrough all which are by the express words of the Statute said to be granted by the Knights and Burgesses But if it was onely upon the King 's particular instigation and not by order or consent of the Parliament the King in such case being Voluntier all the Souldiers were in like manner unless some particular Law or Tenure otherwise obliged them As touching the arming of Souldiers the Law was yet more certain and particular If the Souldiers were men of Estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by virtue of their Tenures The first of these is confirmed by Edward the Third in Parliament wherein he willeth that no man shall be urged to arm himself otherwise than he was wont in the times of his Ancestors Kings of England The two latter were likewise confirmed by another Law made in the same Kings time whereby it was ordained That no Man shall be constrained to find Men of Arms Hoblers nor Archers other than those which hold by such services if it be not by common consent and grant made in Parliament By Men of Arms meaning those which we now call Curiassieres or compleat armed by Hoblers meaning those now called light Horse-men The Archers served on Foot and were principally armed with Bows although they had also Swords or other such offensive portable Weapons The first of these concerneth onely the arming of a man 's own person the other the finding of Souldiers and arming of them and both together sufficient for the safeguard of the Rights and Liberties of the People invaded in those times by Commissions of Array and such other expressions of Prerogative Royal for as touching the arming of a man 's own person the Statute of 1 Edward 3. formerly mentioned is clear in the point And though the Statute of 25 Edward 3. doth not in the latter direct as touching the finding Arms for others as is urged in his Majesty's Answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleat Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private person in such cases to command him to the service it seemeth clear to me that the Statute must intend the arming of him with compleat Arms and not the armed person of the man. The Souldiery thus arrayed they are in the next place to be called to their Rendezvouz the Knights by Summons sent to the Sheriff but the rest by Proclamation If the Knights appear
any Man he must go whither the King shall please to send him which is not onely destructive to the opinion of Thirning concerning the Plea but also though granted is destructive to the Reporter's Judgement in the main point For if an English man may refuse to go without Wages then is he not bound to go by any natural absolute Legiance as the Reporter would have it And as touching the second Case which is Bigot's and Bohun's Case it cleareth the same thing for it was resolved that they ought to go but in manner and form according to the Statutes then is not the ground in the absolute Legiance for that is not qualified but in the positive Statute-law which tieth onely in manner and form and that by voluntary consent in Parliament The rest of the Cases do neither conclude the main point nor the particular thing that the Reporter intendeth For he would imply to the Reader that English men were anciently used to be imprested for the Wars in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Third's time one Anthority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which do speak one word concerning Impresting And that in Edward the Third doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to go beyond the Sea with the Duke of Lancaster and the Plaintiffs Counsel alledged That the Defendant had been beyond Sea with the Duke and was returned To this the Defendant's Counset answered That the Duke was ready to return again and for this cause the Protection was not allowed Yet a Quere is made upon this ground that it might be that the Defendant would not go over with him nor was it proved that he would which sheweth plainly the party was not imprested for then the thing had not been in his power to will or nill The last instance that the Reporter produceth is that of Forinsecum Servitium or Foreign Service and that seemeth to be Knight-service to be performed abroad But this falleth short of the Reporter's intention in three respects First Though it belongeth to the King yet not to him onely but to other chief Lords so saith Bracton Secondly It is not due from every English man. And lastly It is a Service due by vertue of Tenure and then the Conclusion will be That which is due by Tenure of Lands is not due by natural and absolute Legiance and so this Foreign Service arising meerly by compact and agreement between Lord and Tenant and not by the natural duty of an English-born Subject which is the thing that the Reporter drives at in all his discourse will be so far from maintaining the Reporters opinion as it will evidently destroy the same And thus the posture of this Nation in the Field remaineth regular in the rule whatever hath been said against it notwithstanding that in the very instant of Action there may be some irregularity which no doubt both was and ever will be in stormy times Nor did it conquer the Law For though War may seem to be but a sickness of the State yet being in Truth as the Vltimum refugium and onely reserve unto Law beaten to a retreat by opression it is no wonder if this motion or rather commotion that brings on the Law of Peace in the Rear be still and ever subject to rule of Law how unruly soever it self seemeth to be Now because Law imports execution and that presupposes a Trial and it a Court therefore did our Ancestors amongst other Courts not regulated by the Common Law form a Court for the service of War called the Court-Marshal or the Constables Court according as the Office of one or the other had the preheminence The proceedings herein were ordered as I said not accordiag to the Common Law for that is like the Land much distant from all other Nations and the Negotiation of this Island with other Nations as in time of Peace so of War requires a rule common to all those Nations or otherwise no Negotiation can be maintained And for this cause the proceedings in this Court were ever according to the rule of the Civil Law. The work of this Court is principally Judicial and in some cases Ministerial The first reflects upon cause Foreign and Domestick and both of those are either Criminal and such as concern the common Peace of the place of War or more civil relating onely unto private interest As touching the first of these I suppose it is no Bull to speak of a common Peace in the place of War. For a common Peace must be in each party within it self or otherwise no party at private variance can subsist within it self much less make War with the other and therefore in order unto War there must be a Law of Peace for the Trial of Offenders and punishing them for offences committed against the good Government of the War Such as are breaking of Ranks deserting the Standard running away from the Colours Mutinies Murthers Rapes Plundering-private Quarrels disobedience to command and such-like all which do bear the shew of crimes against the common Peace of the Army and the Country Of the second sort are matters concerning Quarter and Contracts in order to the government of the War saving such as are made before either part be inrolled for the War. For if a man doth covenant to serve in the War and keepth not his day at the first Rendezvouz he is to be attached by Writ at the Common Law. Causes Domestical likewise fall under the like division for whatsoever cause may be Forein may also be Domestick because the Army is ever embodied within the Kingdom and must be under the Directory of the Martial law upon the first forming thereof Now though the particular Laws of the Army for the government thereof be ordinarily according to the prudence of the General yet certain Fundamentals have been ab Antiquo made by Custom and the Parliament against which the course of Judicature must not go And as the Parliament saw need it set also particular directions as for the payment of Souldiers Wages for remedy of wastings and plunderings in their own Country and other such emergencies But the execution of all these Laws Originally was in the Marshal of the Army And because that the Army was generally dissolved or such persons engaged in such matters of controversie departed from the Army before the same were concluded therefore the Marshals Court continued in order to the determining of these matters And in continuance of time other matters also crowded into that Society although sometimes under the Directory of the Constable of England as well as at other times under the Marshal more particularly that power of determining matters concerning Torniament a sport that like a Sarcasm tickles the fancy but
otherwise than in especial Cases And then the conclusion will be that if the King may not give Liveries to the prejudice of the Peace then may he much less break the Peace at his pleasure or levie Men Arms and War when he shall think most meet Take then away from the King absolute power to compel men to take up Arms otherwise than in case of Foreign Invasion power to compel men to go out of their Counties to War power to charge men for maintenance of the Wars power to make them find Arms at his pleasure and lastly power to break the Peace or do ought that may tend thereto and certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array entitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a Precedent or Rule for the future yet will it not follow that Henry the Fourth had or any Successor of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall think meet First As touching the amendment of the Commission it was done upon complaint made by the Commons as a grievance that such Commissions had issued forth as had been grievous hurtful and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges And if it be true that the amendments were in the material clauses as it is granted then it seemeth that formerly a greater power was exercised than by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no grievance to the Subject Secondly If the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not go and then it will also follow that the power of Array is not originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in material parts of the Commission and the powers in execution there whereof no complaint of grievance had been made The issue then is If the King had an Universal power in the Array the Parliament likewise had a general liberty without any restriction to correct that power Lastly Suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings power is established yet can it not be concluded that this power is originally or absolutely in the King. It is not absolutely in him because it is limited in these particulars First It is not continual because it is onely in case of eminent danger Secondly It is not general upon all occasions but onely in cases of a Foreign and sudden Invasion and attempts Thirdly The powers are not undefined but circumscribed 1. To Array such as are armed so as they cannot assess Arms upon such 2. To compel those of able Bodies and Estates to be armed and those of able Estates and not able Bodies to arm such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they strain themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remedial in particular cases yet do I not agree to their Glosses but leave them to the debate already published concerning the same Secondly As this power was not absolutely in the Kings so was it not originally from themselves because they had not the Legislative power concerning the same but the same was ever and yet is in the Parliament Hereof I shall note onely three particular instances First The Militia is a posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprizal granted to such of the people of this Nation as are pillaged by Sea by such as have the King's Conduct or publick Truce And by this Law the party pillaged had power to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellour had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Foreigners were become bold to transgress and the English fearful in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdom was much impaired Nor is the equity of this Law to be questioned for if the Magistrate upon complaint made grants not relief the offence becomes publick and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for relief at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a general War. Two other instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers pay Viz. That Captains shall not abate the Souldiers Wages but for their Clothing under peril of Fine to the King. The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their service be expired unless in case of sickness or other good cause testified and allowed by the Captain and such as shall do otherwise shall suffer as Felons Which Laws could not have holden in force had they not been made by Parliament in respect that the penalties concern the Estates and Lives of men which are not to be invaded but by the Law of the Land. So as both Captains and Souldiers as touching the Legislative power are not under the King in his personal capacity but under the Law of the Parliament Lastly As the rule of War was under the Legislative power of the Parliament so was the rule of
shipped over the Popes power to the Chair of Canterbury and had made a Pope instead of an Archbishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost we come in the next place to observe First they had still their Courts and Judicatory power but upon what right may be doubted Their first foundation was laid by the Civil power of a Law in the time of William the first Norman King yet the power of the Pope and Bishop growing up together they came to hold the power of the Keys by a Divine Right and so continued until these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewn and many seem to change their Tenure and therewith therefore are in right to change the Style of their Courts and Title of Summons but the times not being very curious and the work of reformation but in fieri the more exact lineaments must be left to time to finish and beautifie A greater blow did light upon the Law of these Courts which was left as doubtful as the Canons all which are now put to the question and to this day never received full resolution but were left to the Parliament to determine them at leisure and in the mean time to the Judges of the Common Law to determine the same Lawful or Unlawful as occasion should require Nevertheless the Courts still hold on their course according to their old Laws and Customs for their form of Proceedings some say by Prescription yet more rightly by Permission it being a difficult matter to make Prescription hold against a Statute-Law As touching the matters within their Cognizance the Law setled some and unsetled others First As touching Heresie the Church-men formerly thought scorn the Lay-Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civil Magistracy so by degrees arose the penalties of Imprisonment and Burning which brought the whole matter into Cognizance before the Civil Magistrate because no Free man might be proceeded against for loss of Life or Liberty but by the Laws of the Nation and for this cause the Civil Magistrate granted the Writ of Habeas Corpus and relieved many times the party imprisoned wrongfully or granted Prohibition as they saw cause And therefore it cannot be said rightly that the sole or supream Cognizance of this crime of Heresie belonged to the Clergie before these times Nor did their proceeding upon the Writ of Burning warrant any such thing partly because till these times the canon-Canon-Law was the best ground that these proceedings had and the course therein was not so uniform as to permit the Title of a Custom to warrant the same Conviction being sometimes by Jury sometimes according to the Canon sometimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before special Delegates as the Histories of the Martyrs more particularly set forth and no Act of Parliament positive in the point But the time is now come when nighest Reformation that the thing is setled more to the prejudice of Reformation than all the endeavours foregoing like to the darkness of the Night that is at the Superlative degree when nighest break of Day A Statute is now made that indeed quite blotted out the very name of the Statute of Henry the Fourth De Haeretico comburendo but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5 both which were formerly neither good in Law nor effectual otherways than by Power and gave more settlement to the Ordinaries proceedings in such Cases For the Delinquent might be convict before the Ordinary by Witnesses or might be indicted at the Common Law and the Indictment certified to the Ordinary as Evidence Yet did the Parliament carve them out their work and in express words declared That Opinions against the Authority and Laws of the Bishop of Rome were not Heresie and by the same reason might have done more of that kind but that was enough to tell all the world that the Parliament could define what was not Heresie although they did not then determine what was Heresie And thus the judgement of the Romish Church is called into question in one of their Fundamentals and the Clergie left in a Muse concerning the rule upon which they were to proceed against this crime The Parliament within six years after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publick Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the Trial to be before Commissioners by Jury or Testimony of two Witnesses or by examination in the Ecclesiastical Court or inquisition in the Leet or Sessions of the Peace Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie but the Parliament determined such Heresies as were punishable with Death and Forfeiture by enumeration in the six Articles This was the Clergies Primer wherein they imployed their study as making most for their design and laid aside thoughts of all other Heresies as dry notions or old fashions laid aside and not worthy the setting forth to the common sale Secondly The Lesson concerning Marriage was no less difficult for the Clergie to take out They were put by their former Authority derived from abroad and their ancient rule of the Canon-Law With the Kings leave they do what they do and where they doubt they take his Commission So did the Archbishop of Durham in the Case between John and Jane Fisher In the Kings Case the determining part is put to the Parliaments conclusion and for a rule in other cases some persons are enabled to marry which formerly were not viz. Masters of the Chancery and Doctors of the Civil Law and some forbidden Marriage as all Priests by the Statute of the six Articles And unto the rest concerning degrees of Consanguinity or Affinity a particular enumeration is appointed to be observed within which Marriage is declared unlawful all other further off are made lawful In all which regards the Cognizance of Matrimonial Causes is theirs onely by leave Thirdly Residency and Non-residency was a Theme formerly learned from the canon-Canon-Law in which as also in the thing it self the Clergie were the onely skilful men The rule of the Canon-law was strict enough considering the times but it was not â—â—eel to the back The Parliament now undertakes the Cause and though it gave in some respects more liberty than the Canon yet stood it better to its tackling and kept a stricter hand upon the reins than was formerly used and by giving a general rule for Dispensation took away all arbitrary Dispensations and Licenses which were formerly granted beyond all rule but that of Silver or Gold
and made all practices contrary to the rule damageable to the party Thus far concerning the matters in Cognizance now touching the power of the Keys English Prelacy having laid aside the pretentions of Rome they put the world to a gaze to see which way they would go In the innocent infancy of Prelacy it was led by the hand by the Presbytery and would do nothing without them afterwards having gained some degree of height and strength they entred themselves to be Chariot-horses to the Roman Sun till they had set all on fire Now unharnest it is expected they should return to their former Wits nevertheless forgetting their ancient Yoak-fellows the rural Presbyters they stable with the King use his name sometimes but more often their own serving him with Supremacie as he them with authority beyond their Sphere They raise him above Parliament he them above Councils so as they do what they list let the Plebeian Presbyter will or nill they are the onely numeral Figures and the other but Cyphers to make them Omnibus numeris absoluti Nevertheless the Canon still remains the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lord s the King never gave them the Keys and as Bishops the Canon did not yet as under the joynt Title of Lord-Bishops they hold themselves priviledged to get what power they can Two things they reach at viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiastical The Common Law would never yield this some Statutes in some Cases did pretend First As touching Imprisonment the Statute of Henry the Fourth concerning Heresie doth lisp some such power of what force the same Statute is hath been already observed In case of incontinency of Church-men it is more directly given them by a Statute in Henry the Seventh's time before which time the Statute it self doth intimate that an Action did lie against them for such Imprisonment which Law also was made useless by another in Henry the Eighth's time who gave a way to Statutes for the punishing them at the Common Law. First with Death which continued for some Moneths and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a Law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the Fourth formerly mentioned although till Trial the same was bailable And thus continued till the time of Edward the Sixth But as touching Excommunication it was to no purpose for them to struggle the Common Law would never permit them to hold possession quietly but did examine their Authority granted Prohibition enjoyned the Ordinary to grant Absolution where it saw cause Nevertheless in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the â—evying of Tenths In the next place the Prelacy had not this Ecclesiastical Jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not onely to Bishops but to Chancellors Vicars general Commissaries being Doctors of the Law and not within holy Orders and limiting their Jurisdiction in cases concerning the Papal Jurisdiction and their manner of sending their Process and Citations to draw men from their proper Diocess and also their inordinate Fees in Cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine Right and lived they cared not by what wrong But the Laity enclining too much to the new Religion as then it was termed refused to yield one foot unto their pretentions And so like two Horses tied together by their Bits they endeavour after several courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a Horseman that neither of them could unhorse him till Death laid him on the ground And thus was the Roman Eagle deplumed every Bird had its own Feather the great men the Honours and Priviledges the meaner men the Profits and so an end to Annates Legatine levies Peter-pence Mortuaries Monasteries and all that Retinue the vast expences by Bulls and Appeals to Rome to all the cares expences and toil in attendance on the Roman Chair The beginning of all the happiness of England CHAP. XXXI Of Judicature THese two Kings were men of towring Spirits liked not to see others upon the Wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the Eighth whose motion was more eager and there was no coming nigh to him but for such as were of his own train and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice than the Nobility had Both the Kings loved the air of profit passing well but the latter was not so well breathed and therefore had more to do with Courts which had the face of Justice but behind were for the Kings Revenue Such were the Court of Requests of mean Original mean Education yet by continuance attained to a high growth The Court of Tenths and first-Fruits The Court of Surveyors The Court of the Lord Steward of the Houshold The Court of Commission before the Admiral The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard And that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the loss of that grand Liberty of that Country formerly a Province belonging to this Nation and now by Henry the Eighth incorporated into the same and made a Member thereof and brought under the same Fundamental Law a work that had now been long a doing and from the time of Edward the Third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crown Then upon occasion of their Rebellion by loss of many of their wonted Liberberties Afterwards Henry the Eighth defaced the bounds of divers the ancient Counties and setled them anew and the bounds of the Marches also and appointed Pleas in Courts of Judicature to be holden in the English Tongue And last of all re-united them again to the English Nation giving them vote in Parliament as other parcel of the English Dominions had True it is that from their