with Devils Yet if the Delinquent had done any mischief whereby death ensued the parties punishment was death yet might all be discharged by Ransome and good security for good behaviour for time to come For their worship of God they were no less zealous in maintenance of the manner as their Forefathers liked not the use of Images or Pictures for adoration neither did they and though the Clergy in other matters led them much yet in this they were alone for a long time for though the Roman Church had the use of Images above Three hundred years before Austin's coming yet could not that custom fasten upon the Saxons for the space of above One hundred years after Austin's coming notwithstanding the endeavours of Charlemain and Pope Constantine by his bastard-decree begotten upon the dream of the Bishop of Worcester that saw the Virgin Mary's picture brought him in his sleep by her self and with a command from her That it should be set up in the Church and worshipped I say it could not fasten any constant practice of Idol-worship nor ever wrest a Law from the Wittagenmote to countenance the same but rather on the contrary they still preserved the memorial of the second Commandment in the Decalogue even then when as the Romanists had expunged the same out of the number and they enforced the same by a Law of their own making so far as their Clergie or Reverence they bear to Rome would allow It hath been formerly observed that the Saxons took no note of the vice of prophane swearing and cursing which crime if it were in use as it cannot be otherwise conceited but it was as the times then were must lie upon the Clergie-mens account for their neglect of teaching the point or upon the general ignorance of those times which understood not the Commandment nor the Scripture For we find no Canon against it nor scarce any Doctrine concerning it but onely in case of false swearing till Anselm's time True it is that Chrysostom seemeth zealous against all swearing but that was his personal goodness which for ought appeareth died with him And Anselm contending against swearing by the Creatures and idle swearing renders his grounds in such manner as it may be well conceived that he understood not the main I am the rather induced to conceive charitably of those times in regard of their exceeding zeal for the honour of the Lords day which sheweth that so far as their knowledge would maintain them they had zeal to make it into action They began this day doubtless as other days according to the custom of their Forefathers in Germany Nox ducere diem videtur And because they would not allow their secular affairs to trench too nigh that days devotion they made the Lords day to begin on Saturday at three of the clock in the afternoon and to continue till Munday-morning No pastime no not their beloved sport of Hunting was allowed during all that while nor no works were to be done but such as concerned the Worship of God and those Laws they bound with penalty of Fine if the Delinquent were a Free-man if he were a bond-servant he was to be whipped Nor were these the Laws of one King or Age onely but of the whole current of the Saxon Government and may although dark times they were yet put us in these days of light to the blush to enter into comparison with them for their Devotion In their Conversation with men the Saxons seemed yet more strict and being a people of a publick spirit they preferred the good of their Country above all accounting Treachery against it or neglect thereof in time of danger to be a Crime of the greatest concernment and to be punished in the highest degree Proditores transfugas arboribus suspendunt Other Treason than this no not against Kings did they then acknowledge any and therefore the form of the Indictment for contriving the death of their King concluded onely Felonicè as may appear in that form of an Indictment for an offence of that nature intended and plotted against Edmond the Saxon King Whenas for the plotting against Alliance though of common and inferiour nature the Indictment concluded Felonicè Proditoriè And wereas the penalty in case of Treachery against the Country was death and forfeiture of the whole Estate both real and personal In Treachery against the King it was onely loss of life and of the personal Estate And therefore it may seem that Majesty had not yet arrived at its full growth or else that the greatest measure thereof rested in the body still If in any thing the Saxons were indulgent it was in matters of Blood for they were a warlike people and looked upon it as under the regiment of valour and therefore it was punished only with fine according to the old rule Luitur homicidium certo armentorum pecorum numero So as even in Germany they had learned the trick to set a price upon that crime and this they afterward called Manbotta wera wirgida wita and lashlight and which was worse they countenanced that which in after-ages was called deadly feud and so under colour of punishing Murder with revenge they added blood to blood But as times grew more tame and inclining to civility or Religion the cry of Blood was more hideous and this urged on the Law of Appeals and so private revenge became under the power of the Law which punished death with death savouring of such a King as Alfred was who first taught the Scriptures to speak in the dialect of our own Laws like the Rubrick amongst the Canons bringing therewith both strength and beauty yet they had degrees of blood-shed and made a difference in the punishment for some sprung from sudden passion but other was forethought and purposed which last they called Abere Murther or Murther by foreplot or treachery and this was made nullo pretio emendabile and yet towards the times of the Danes devotion grew of so high a dye that a Sanctuary could represent any bloodshed more allowable if not acceptable under the golden colour of recompence made to the King the Lord of the party slain and the parties friends for the loss of a Subject a Tenant and a Friend according to that of their forefathers recepitque satisfactionem universa domus It would be too tedious to recite all the particular Laws with their changes and therefore they shall be lest to the view in the several Laws of Alfred Edmond Canutus and Edward the Saxon Kings Yet one custom first begun by the Danes I cannot omit That if a man were found slain whose parents or friends were unknown by common intendment he was presumed to be a Dane and then if the delinquent were not taken nor fled to Sactuary nor known where he is the whole
in force although many of them had their original from the Saxons One God must be worshipped and one faith of Christ maintained throughout the whole Kingdom This is found amongst the Laws of the King William published by Mr. Selden and was for substance in the Saxons time saving that we find it not annexed to the Crown summarily until now so as by this Law Heresie and Idolatry became Crown-pleas And the like may be collected concerning Blasphemy concerning which it is said as of the Servant's killing his Lord that it is impardonable nor could any man offend herein but it endangered his whole estate The trial of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and possibly in the County-court of the Torne where the Bishop was present Jura divina edocere Peter-pence Ciricksceat and Tythes must be duly paid These are all Saxon Laws united to the cognizance of the Crown as formerly hath been shewed Only the first William especially provided that in case any man worth Thirty pence in Chattels did pay four pence for his part it should be sufficient both for himself and his Retinue whether Servants or Retainers and defaults in payment of these duties were finable to the King. Invasion upon the right of Sanctuary fined This I note not so much in relation to any such Law amongst the Saxons as to the future custom which now began to alter according to the increase or wane of the Moon I do not find this misdemeanour to be formerly so much taken to heart by the Crown nor possibly would it have been at this time but that the King must protect the Church if he mean to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their own right by themselves Amongst all the rest of Church-rights this one especially is confirmed viz. That any Delinquent shall have liberty of Sanctuary to enjoy both Life and Member notwithstanding any Law to the contrary This priviledge was claimed by the Canons but it must be granted by the Temporal power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such privileges in particular yet could not such Grants create such immunities contrary unto or notwithstanding any publick Law of the Kingdom and therefore the Monasteries had their foundations confirmed by Parliament or general assembly of wise men if the first foundation was not laid thereon Working upon the Feast-days punished by Fine Before this time no days for Solemn Worship of God were acknowledged by the Law of the Kingdom but the Lord's days By this all days celebrated or instituted by the Church for that purpose are defended by the civil power and breach of the holy observation of these days made enquirable and punished amongst other pleas of the Crown Breach of the Peace Bloodshed and Manslaughter punished by Fine This was the ancient Law of the Saxons and was continued without alteration till about Alfred's time whose zeal against blood caused Murther to be punished with death but the Danes bringing in a moderation if it may rightly be so called are now seconded by their kindred the Normans who will not admit of punishment by death partly because being a warlike people bloodshed might seem to rank itself under the Regiment of valour and partly because they owed much to that Title for the possession of all that they had gotten in England And to prevent scandal entring upon the rear opinion stept in that a miserable life was more penal than death and therefore in crimes of the deepest die they came to fine and loss of Member and which course prevailed most either to stop or enlarge the course of that sin was left to the disposition of such as intended to make trial But in matters of less malignancy the purss rather smarted than the body wherein they proceeded so far as to punishment of death by violence yet was not the fine to be measured by the judgment of the mercy or rigour of any person but only of the Law itself which set down in certainty both the nature and quantity of the fine and left that memorial upon record of a good mind at least to an equitable and just Government In all these cases of breach of peace the King's Court becomes possessed of the right of cognizance and the peace is now called the King's peace not so much because that it is left only to his providential care to maintain as because the fines for most of those crimes pertained to the King for otherwise there is a sort of crimes that are contra pacem vicecomitis as will be more cleared hereafter I shall conclude this subject with these three Observations First that the Laws in those ancient times of the Normans were so general as they then made no difference between places or persons but whether the peace was broken upon holy or common ground or upon a Lay-man or one in orders the Lay-power seized upon all The second is the care they had for apprehending of the offenders in this kind If the party slain were a Norman or Frenchman the Lord of the Manslayer was charged to have him forthcoming within a certain time or pay the Kings Fine of 46 Marks so long as he had wherewith to satisfie and for what remained the whole Hundred was charged But if the party slain were of any other people the Hundred was immediately charged with the Manslayer and must bring him to answer within a certain time or pay the Kings fine The third and last is the care they had to prevent breach of peace for the future first in setling of night-watches by all Cities Burroughs Castles and Hundreds in such manner as the Sheriff or chief Officers by Common-council shall advise for the best safety of the Kingdom Secondly in forbidding entertainment of unknown persons above three days without surety for their good abearance or becoming their pledge for the publick safety nor to let any persons pass away without testimony under the Ministers and Neighbours hand of their good carriage A Man committing Adultery with a Married Woman shall forfeit to his Lord the price of his life This made the crime enquirable at the common-Law as an offence contra pacem Domini but afterward it was sinable to the King and enquirable amongst the pleas of the Crown by the Law of Henry the first Force upon a Woman to the intent to Ravish her is finable but if a Rape be committed it shall be punished with loss of Member The crime and offences against this Commandment were always punished in the Temporal Courts by Fine at the least and are still in the Normans time prosecuted in the same way notwithstanding the growing authority of
right and so the Lord became both Judge and Party which was soon felt and prevented as shall appear hereafter Another priviledge of the Lords power was over the Tenants Heir after the Tenants death in the disposing of the Body during the minority and marriage of the same As touching the disposing of the Body the Lord either retained the same in his own power or committed the same to others and this was done either pleno jure or rendring an account As concerning the marriage of the Females that are Heirs or so apparent the Parents in their life-time cannot marry them without the Lords consent nor may they marry themselves after their Parents death without the same and the Lords are bound to give their consent unless they can shew cause to the contrary The like also of the Tenants Widows that have any Dowry in the Lands of such Tenure And by such-like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons Of the power of the last Will. It is a received opinion that at the common-Law no man could devise his Lands by his last Will. If thereby it be conceived to be against common reason I shall not touch that but if against custom of the ancient times I must suspend my concurrence therewith until those ancient times be defined for as yet I find no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last Will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all Conveyances Voluntas donatoris de caetero observetur And therefore nothing was more ordinary than for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. Thus King John appointed Henry the Third his Successour and Richard the first devised the Crown to King John and Henry the first gave all his Lands to his Daughter and William the Conqueror by his last Will gave Normandy to Robert England to William and to Henry his Mothers Lands If then these things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller Free-holds should be of too high esteem to be credited to such Conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposal of the last Will of the possessor nor do I think that either they were thus in this Kingdom or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last Will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vain I have observed the words of Glanvil concerning this point and I cannot find that he positively denyeth all conveyance of Land by Will but only in case of disherison the ground whereof is because it is contrary to the conveyance of the Law and yet in that case also alloweth of a disposing power by consent of the Heir which could never make good conveyance if the Will in that case were absolutely void and therefore his Authority lies not in the way Nor doth the particular customs of places discountenance but rather advance this opinion for if devises of Lands were incident to the Tenure in Gavel-kind and that so general in old time as also to the burgage Tenures which were the rules of Corporations and Cities Vbi Leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common Law And therefore those Conveyances of Lands by last Will that were in and after these times holden in use seem to me rather remnants of the more general custom wasted by positive Laws than particular customs growing up against the common rule It is true that the Clergy put a power into the Pope to alter the Law as touching themselves in some cases for Roger Arch-bishop of York procured a faculty from the Pope to ordain that no Ecclesiastical persons Will should be good unless made in health and not lying in extremity and that in such cases the Arch-bishop should possess himself of all such parties goods but as it lasted not long so was himself made a president in the case for being overtaken with death e're he was provided he made his Will in his sickness and Henry the Second possessed himself of his Estate And it is as true that Feme coverts in these days could make no Will of their reasonable part because by the Saxon Law it belonged joyntly to the Children Nor could Vsurers continuing in that course at the time of their death make their Will because their personal Estate belonged to the King after their death and their Lands to their Lords by escheat although before death they lie open to no censure of Law but this was by an especial Law made since the Conquerour's time for by the Saxon-Law they were reputed as Out-Laws Nevertheless all these do but strengthen the general rule viz. That regularly the last Will was holden in the general a good conveyance in Law. If the Will were only intended and not perfected or no Will was made then the Lands passed by descent and the goods held course according to the Saxon Law viz. the next Kinsmen and Friends of the intestate did administer and as administrators they might sue by Writ out of the Kings Court although the Clergy had now obtained so much power as for the recovery of a Legacy or for the determining of the validity of the Will in its general nature it was transmitted to the Ecclesiastical Court. CHAP. LXIII Of the Militia of this Kingdom during the Reign of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that from the Norman times the power of the Militia rested upon two principles the one the Allegiance for the common defence of the King's person and honour and Kingdom and in this case the King had the power to levy the force of the Kingdom nevertheless the cause was still under the cognizance of the great Council so far as to agree or disavow the War if they saw cause as appeared in the defections of the Barons in the quarrel between King Steven and the Empress and between King John and his Barons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Arms either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extream prejudice and the Kingdoms
apparent into the Case making the same Treason So as it implieth that English Allegiance tieth the Subject not onely to the safety of the Person of the King but also to the Queen and Heir apparent otherwise the offence is made and declared Treason against the King. Secondly The Election of the Object is to be considered for whether the one or other Statute be observed it will appear that although the King was the next object expressed yet a further was intended and that the Crime is not intended in regard of his natural Capacity as a man but of his politick Capacity and in relation to the Common good of the Nation And this is evident not onely from the several Prefaces of the Laws but also from the manner of Election whereby the Title of Heir apparent is taken up and not the Eldest Son or Daughter or these and not the other Children all which are equally dearly beloved in natural regard Thirdly Though at the Common Law Treason be properly a Crime against Allegiance yet as in Cases of Felony crimes may be by the Statute made as Treason which at the Common Law are not against the Legiance of an English man for this remaineth ever one and the same but one and the same fact may be made Treason and unmade by the Statute-law as befel this Law of Henry the Eighth by a Law within twenty years after like as also in former times one and the same fact hath many times received the like measure Other Treasons besides these already mentioned were by Henry the Eighth created as Marriage with any of the Kings Sisters Daughters or Aunts of the Father's side or the Daughters of his Brethren or Sisters without consent first had of the King Counterfeiting currant Money not of the Kings Coynage was likewise made Treason by Henry the Seventh who was well seen in that Mystery or Money-trade and the like also became of Counterfeitures of the Kings Privy Signet and Sign Manual And lastly that horrid trick of Poysoning was reduced to this Category rather that the Penalty might be more terrible in the Death which was by boyling than for any Tincture in the Nature of the Crime or in any Forfeiture of Estate The policy of these times thus irritated against Treason had proved very irregular if the same had not been as rigid in cases of Felony Divers new ones of that kind are also dubbed amongst which Conjuration or Witchcraft comes first an old Felony in the Saxons time but since had gotten its Clergie now well-nigh for the space of Five hundred years and they it so as it never walked abroad amongst the Laity but under the favour of the Cloistered people nor ever came before the Civil Power till now Henry the Eighth brought it forth into its own ancient and proper Regiment Other crimes being those of the season are made into the same degree Such as were taking of Women into Captivity unlawful Huntings with disguises malicious breaking of the Dikes and Banks in Marshland Servants embezzelling their Masters Goods to the value of Forty shillings or upward which besides that of Heresie whereof formerly though of a new stamp yet of so good a constitution that they remain unto this day under the same brand But let the Laws be never so severe if they have not free liberty to walk at large they are soon ghostless and therefore these two Kings especally the later gained that Honour above their Predecessors that they gave the Law a free and full scope over all persons but themselves and their Assignees and in all places First concerning places every one knows the Notion but few considered the extent of Sanctuary ground in England that could sanctifie any crime or criminal person in such manner that though the eye of Justice could see yet the hand of Justice could never reach them till Henry the Eighth plundred them of all their Sanctity and made all places common So as no Treason could hide it self but where the Act of Parliament did appoint and turned their names from Sanctuaries to priviledged places The sanctity of the person was yet more mischievous and hard to be reformed it had been often attempted before these times with little success Henry the Seventh gained some ground herein beyond his Ancestors the Delinquent might have his Clergie once but not the second time though he fled to the horns of the Altar and was ever after known by a brand in the hand Thus far did Henry the Seventh go and would have done more even as far as unto those in Holy Orders But Henry the Eighth coming on in point of Treason made all persons common without respect of their Orders or Profession Death makes an equal end of all In cases of Murther Robbery Burning of Houses Felonies done in holy Ground High-way or Dwelling-house refusal of Trial peremptory challenge of above twenty of the Pannel Servants embezzelling their Masters Goods in value Forty shillings or upwards in all these Cases no Clergie could be allowed but to persons in Holy Orders and those also to be perpetually imprisoned in the Ordinaries Prison And yet this exception held not long in force but these men also were equally wrapped up in the same course to have their Clergie and indure the brand even as other men Two difficulties yet remain which hindred the execution of the Laws against Treason One concerning the Place the other the Person The Place many times of the plotting and beginning of the Treason befalleth to be without the walk of the Kings Writ in which Case by the Common Law it cannot be inquired or tried or it may be that the men of the place be generally disaffected and then no hope of finding out the matter In such Cases therefore it is provided that be the crime wheresoever the Delinquent will it shall nevertheless be inquired and tried where the King will. The Person of the Delinquent also many times changed its condition it might be sober at the time of the Delinquency and afterwards upon discovery prove Lunatick and thereby avoid the Trial this whether in jest or earnest by a Statute is made all one and it is ordained That in case the Fact be confessed by the Delinquent before the Lords of the Council at such time as the party accused was of sound mind and the same be attested under the hands of four of those Lords the same shall be a good ground to proceed to inquisition before Commissioners and the same being found to try the Delinquent without answer or appearance saving unto Barons their Trial by their Peers And thus however in their Fits the Will of the Persons of these Kings was too hardy for the Kings to manage according to rule yet the Law still in Title kept the Saddle held the Reins and remaineth the chief Arbitrator unto every man. CHAP. XXXIV Of the general Government