sounds as much as if the tenants were bound by their tenures to ayd their Lord in all cases of extraordinary charge saving that the Lord could not distraine his tenant for ayd to his warre and this according to the Lords discretion Ibid. for Glanvile Glanv l. 9. c. 8 saith that the law determined nothing concerning the quantity or valew of these ayds These were the Norman waies and savoured so much of Lordship that within that age they were regulated But that of reliefes was an ancient sacrifice as of first fruits of the tenement to the Lord in memoriall of the first Lords favour in conferring that tenement Ibid. and it was first setled in the Saxons time The Lords priviledge of power extended so farre as to distraine his tenants into his own Court to answer to himselfe in all causes that concerned his right and so the Lord became both Judge and party which was soon felt and prevented as shall appeare hereafter Another priviledge of the Lords power was over the tenants heire 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 Glanv 7.10 or committed the same to others and this was done either pleno jure or rendring an account Ibid. c. 12. As concerning the marriage of the females that are heires 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 unlesse they can shew cause to the contrary The like also of the tenants widdows 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 14. 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 custome of the ancient times I must suspend my concurrence therewith untill those ancient times be defined for as yet I finde 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 cetero observetur And therefore nothing was more ordinary then for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. M. Paris An. 1216. Hoveden An. 1199. Malmsb. nov l. 1. Malmsb. l. 3. Thus King John appointed Henry the third his successor and Richard the first devised the Crown to King John and Henry the first gave all his lands to his daughter and William the Conquerour by his last will gave Normandy to Robert England to William and to Henry his mothers lands If then 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 disposall of the last will of the possessour nor doe I thinke that either they were thus in this Kingdome 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 vaine Glanvil l. 7. cap. 1 5. I have observed the words of Glanvile concerning this point and I cannot finde that he positively denieth all conveyance of land by Will but onely in case of disherison the ground whereof is because its contrary to the conveyance of the law and yet in that case also alloweth of a disposing power by consent of the heire which could never make good conveyance if the will in that case were absolutely voide and therefore his authority lies not in the way Nor doth the particular customes of places discountenance but rather advance this opinion for if devise of lands were incident to the tenure in Gavell kind and that so generall in old time as also to the burgage tenures Ll. Gulielm cap. 61. which were the rules of Corporation 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 generall custome wasted by positive lawes then particular customes growing up against the common rule It s true that the Clergy put a power into the Pope to alter the law M. Paris An. 1181. Hoved An. 1181. Decret Alex. pap Hoveden fo 587. as touching themselves in some cases for Roger Archbishop of Yorke procured a faculty from the Pope to ordaine that no Ecclesiasticall persons Will should be good unlesse made in health and not lying in extremity and that in such cases the Archbishop should possesse himselfe of all such parties goods but as it lasted not long so was himselfe made a president in the case for being overtaken with death ere he was provided he made his will in his sicknesse and Henry the second possessed himselfe of his estate And it s as true that Femme coverts in these daies could make no will of their reasonable part Glanv l. 7. cap. 5 16. because by the Saxon law it belonged joyntly to the children Nor could usurers continuing in that course at the time of their death make their will because their personall estate belonged to the King after their death and their lands to their Lords by escheate although before death they lie open to no censure of law but this was by an especiall law made since the Conquerours time for by the Saxon law they were reputed as outlaws Neverthelesse all these doe but strengthen the generall rule Ll. Edw. 37. viz. that regularly the last will was holden in the generall a good conveyance in law If the will were onely 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 Glanv l. 7. c. 6. cap. 8. 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
another instance in King Johns time in which after the assent of Earles and Barons the words Et omnium fidelium nostrorum are also annexed but with this conceit of the Opponents that these Fideles were those that adhered to the King against his enemies be it so for then the Commons were present and did assent or they may be saith he some specially summoned as Assistants take that also and then all the true hearted in the Kingdome were specially summoned and were there so as the conclusion will be the same In the fifth place hee citeth a strange President as he calls it of a Writt of Summons in King Johns time in his twenty seventh page wherein Omnes miletes were summoned Cum armis suis and he concludes therefore the same was a Councell of Warr. First Because they were to come armed it s very true and so they did unto the Councills in the ancient Saxon times and so the Knights of the Counties ought to doe in these dayes if they obey the Writte Duos Milites gladijs cinctas c. Secondly He saith That the Knights were not to come to Councill that is his opinion yet the Writt speakes that the Discreti Milites were to come Ad loquendum cum Rege ad negotijs regni Its true saith hee but not Ad tractandum faciendum consentiendum Its true it s not so sayd nor is it excluded and were it so yet the Opponents conclusion will not thence arise That none but the King and those who are of the House of Lords were there present The sixth and last instance mentioned by the Opponent is in his thirtieth page and concerneth Escuage granted to King John who by his Charter granted that in such cases he would summon Arch-Bishops Bishops Abbots Earles and the greater Barons unto such Conventions by speciall Writts and that the Sheriffe shall summon promiscuously all others which hold in Capite and thence hee concludes That none but the Great Lords and the Tenants in Capite whom he calls the lesser Barons were present but no Knights Citizens or Burgesses all which being granted yet in full Parliament the Citizens and Burgesses might be there For Councills were called of such persons as suited to the matter to be debated upon If for matters purely Ecclesiasticall the King and his Councell of Lords and the Church-men made up the Councill If for advice in immergencies the King and such Lords as were next at hand determined the conclusions If for Escuage the King and such as were to pay Escuage made up a Councill to ascertaine the sum which was otherwise uncertaine If for matters that concerned the common liberty all sorts were present Littlet lib. 2. cap. 3. as may appeare out of the very Charter of King John noted in my former discourse Britt Pa. 122. page 258. and also from an Observation of Cambden concerning Henry the third Ad summum honorem pertinet saith he Ex quo Rex Henricus tertius ex tanta multitudine quae seditiosa ac turbulenta fuit optimos quosque ad Commitia Parliamentaria evocaverit Secondly The Opponent takes that for granted that never will be Viz. That all the Kings Tenants In Capite were of the House of Lords when as himselfe acknowledgeth a difference page 28. Viz. That the Barons are summoned by Writs Sigillatim as all the Members of the House of Lords are but these are by generall summons their number great and hard it will be to understand how or when they came to be excluded from that Society I shall insist no further upon the particulars of this Tractate but demurr upon the whole matter and leave it to judgement upon the premises which might have beene much better reduced to the maine conclusion if the Opponent in the first place had defined the word PARLIAMENT For if it was a Convention without the People and sometimes without the KING as in the Cases formerly mentioned of the Elections of William Rufus and of King Steven And if sometimes a Parliament of Lords onely may be against the King and so without King or People as in the Case betweene Steven and Maud the Empresse and the case likewise concerning King John both which also were formerly mentioned possibly it may be thought as rationall for the Commons in after Ages to hold a Parliament without King or House of Lords and then all the Opponents labour is to little purpose An Historicall Discourse of the uniforme Government of ENGLAND CHAP. I. Of the Britons and their government THis is Pritaine or rather that part thereof in after ages called Saxony and England from the peoples names transplanted thither The Britons to lay aside all conceipts of Fame I take to be an issue of the neighbouring Nations from the German and Belgicke shores induced hereto partly by the vicinity of the names of the Peoples Cities Caes com l. 5. or Towns and places but more of their manners and customes both in Religion and civill Government Barbarians they were and so esteemed by the Romans that were but refined Barbarians themselves and yet they worshipped an Invisible Infinite Tacit. Anal. 14. Amian lib 15. Caes com lib. 6 Tacit. Omnipotent God by Sacrifices but the greatest part of their reverence fell short and rested upon their Priests whom they accounted the onely Secretaries that God had on earth feared their interdict worse then death it selfe and in these times of uttermost darknesse held them forth to neighbouring Nations to instruct them into an higher excellency then that of brutish men In their civill Government they allowed preeminence to their Magistrates rather then Supremacy and had many chiefes in a little roome the Romans called them little Kings for the greater renown of their Empire but others of more sobriety account them no better then Lords Caes com lib. 5 Of liberties not much exceeding those of a City and these though in time of peace independant upon each other yea perpetuall enemies yet in time of forraine war joyned together to chuse one head to command them all according to the custome of the Germans Lib. 6. as Caesar noteth But that which yet cleareth the matter is the testimony of Dion in the life of Severus the Emperour who expresly saith that in Britaine the people held the helme of Government in their own power so as these were not Kings nor their government Monarchicall and yet might be regular enough considering the rudenesse that in those daies overspread the World True it is that by a holy man this Nation was in latter times of barbarisme called Tyrannorum gens Hieron the word being taken mitiori sensu or from a common repute of excessive cruelty or oppression by superiours As touching their cruelty I finde no footsteps in story somewhat reflecteth upon their Sacrifices as if they offered mans flesh Caes com 6. but that was common to the Gaults who borrowed their Religion from Britaine and it
age being loaden with military affaires wherein he had been long exercised he had contracted some shifting courses of a souldier in gathering money and souldiers somewhat out of the rode way of an English King Hoveden 348. and led an ill example to future ages nor had he other salve for this wound but that it was for the honour of Christian faith and for the sake of Jerusalem Next comes in Richard the first Richard the first Henry the seconds sonne both in birth and courage yet was his behaviour to his father such that his meritorious holy warre could never wipe it out of the Callender of story His entrance was upon an election made in his fathers life time and the same confirmed by receiving of homage from the Peeres M. Paris The sad troubles that this election amongst other things occasioned to his father in his old age show plainly that Richard trusted not to the title of inheritance nor the French King that tooke his part unto the English custome for the possession of the Crown but all must be done in the life of the father that must secure the government to the sonne when the father is dead and thus is he entred upon the Throne not as heire but as successor to his father yea rather as survivor taking possession of what was by speciall compact conveyed to him by the means of his father in his lifetime though sore against his will if writers speake true As his entrance was it promised a better government then followed for though it was for the most part hidden in the wombe as himselfe did subsist in an other world yet by a secret providence he was given over to the election of ill deputies and therefore he was not welbeloved however deere he was to this Nation A third part of his government was spent in a calm with Pope Clergy Commons and all Nations that were not Infidels upon conscience it seems that he ought not to be troubled who adventured his person so bravely in the holy warre But above all he was the Clergies darling not onely for his adventure in the holy Land but now much more in his returne by his imprisonment in Germany and therefore they stucke close to him in his absence not onely in maintenance of his right to the Crown whereto some made claime and his own brother John did more but emptied themselves to the utmost for his delivery which they effected to the envy of the French and such as longed for his downfall here in England The King comes like the Sunne rising scattering his brothers designes by his very view then returns his thoughts for France where he spent the rest of a restlesse life and as his entry upon the Throne was unnaturall for he made his way upon his fathers Hearse so was his reigne full of troubles and his end not unlike for it was violent and by the hand of his own subject and so ended his reigne that scarce had any beginning Next comes in King John John to act his part according to his entry hand over head whether called by a people scared with the noise of succession by inheritance or such as thought it not convenient nor safe in a stirring time to have a child to be their King or lastly led by an interest that John the youngest sonne of Henry the second had by wofull experience obtained amongst the Lords or some or all concurring its cleare they crossed the way of inheritance waved Arthurs title who was heire to Richard the first and by him also appointed to succeed being then but a child and they chose John a man of warre trained up in the government of Ireland which made way for his active spirit and well seen in the government of England which might have made him wise and under these conceits were willing to forget his oppression in Ireland his treachery against his Lord and King in England set the Crown upon his head and in conclusion acted the Tragedy of Ahimelech in English wherein the Cedar was rooted up and the Bramble troden down The generall temper of his government sheweth that though the King must be thought sober yet the man was mad for he hauked at all manner of game France Scotland England Laity Clergy spared not the Pope himselfe scorned to stoop to occasion all which he did by the strength of the name of a King till at length being well cuft and plumed he was faine to yoke his lawlesse will under the grand charter depose his Crown at the Popes foot and instead of a King became little better then a chiefe Lord in England Thus although Richard the first forgot this mans disloyalty yet God remembred it for the King having gotten the Pope upon the hip and put him to his last shift to stirre up the French to set his curse on worke was by an hidden providence conquered in the middest of a Royall Army without view of enemy or other weapon then a meere noise his Nobility either suspecting all would be gone to Rome or expecting that the King would not deny them their own seeing he had been so profuse in giving away that which was not his demand that their liberties might be confirmed but he being loath to be mated by his Nobles though he was overmatched by the Pope armes himselfe with the Popes curse and the Lords themselves with the French mens power thus the tables are turned and the French playing an after-game to gain to themselves the Crown of England after they saw the death of a Warlike King discovered their designe before it was ripe and in the conclusion were beaten out of the Kingdome by a child It s not worth inquiry what the King allowed or disallowed for it was his course to repent of any thing done contrary to his present sence and made it his chiefe principle in policy to have no principle but desire wherein he triumphed too long by reason of the contentions between the Clergy and the Laity which comming nigh unto the push of the pike and the King ready for the spoile of both the Barrons and Clergy suddenly close their files and like a stone-wall stood firm to each other till the King wearied with successlesse labour was glad to give and take breath M. Paris An. 1215. confirmed the liberties of the people by his Charter which is now called the Magna charta for substance and gave such collaterall security for performance on his part as did let the world know the thing was as just as himselfe had been unjust The worst point in the case was that the people got their own by a kinde of redisseisin a desperate remedy for a desperate condition wherein the Common-weale then lay between life and death upon the racke of the will of a King that would be controlled by nothing but his own appetite and was in the end devoured by it CHAP. LVIII Of the state of the Nobility of England from
had entered into him and animated him in all his waies He brought in with him the first president of conscience in poynt of succession by inheritance in the English Throne for the streame of probabilities was against him He was a child and the times required a compleat man and a man for warre He was the child of King Iohn whose demerits of the State were now fresh in the minds of all men He was also designed to the Throne by his fathers last Will M. Paris An. 1216. which was a dangerous president for them to admit who had but even now withstood King Iohns depositing of the Crown in the Popes hands as not being in the power of a King of England to dispose of his Crown according to his own will Yet leaping over all these considerations and looking on Henry the third as the child of a King that by good nouriture might prove a wise and just King they closed about this sparke in hope it might bring forth a flame whereby to warme themselves in stormy times Nor did their hopes soon perish for during his minority the King was wise to follow good councell and by it purged out all the ill humours that the kingdome had contracted in the rash distempers of his fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those councels that suted with the most populer way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware M. Paris An. 1223. And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meere servant and its hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to governe a King should be much more worthy to governe themselves But the Pope put an end to all occasion of question hereabout for by his briefe he declares the King to be sixteen yeeres old and of age to govern himselfe and therefore all Castles are forthwith to be rendred up into the Kings hands M. Paris An. 1223 1224. This proved the rock of offence whiles some obeyed the Pope and were impugners of those that put more confidence in the Castles then in the Kings good nature Hence first sprang a civill broyle thence want of money then a Parliament wherein the grand charter of Englands liberties once more was exchanged for a summe of money Thus God wheeled about successes But the King having passed over his tame age under the government of wise Councellors and by this time beginning to feele liberty it was his hard condition to meet with want of money and worse to meet with ill Councellors which served him with ill advice that the grand Charter would keepe him down make him continually poore and in state of pupilage to this giving credit it shaped an Idea in his mind that would never out for forty yeeres after and thus advised he neglects his own engagement defies the government that by his Royall word and the Kings his predecessors in coole blood had been setled and that he might doe this without check of conscience he forbad the study of the law that so it might die without heire and he have all by Escheat This sadded the English and made them drive heavily the King to adde more strength brought in forrainers and forraine Councels and then all was at a stand The Councels were for new waies The great designe was to get money to supply the Kings wants and as great a designe was to keepe the King in want otherwise it had been easie for those at the helme to have stopped the concourse of forrainers other then themselves from abroad the confluence of the Queenes poorer alies lavish entertainment profuse rewards cheates from Rome and all in necessitous times But strangers to maintaine their own interests must maintaine strangenesse between the King and his subjects to supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a traine of oppressions depending thereon fines and amercements corrupt advancements loanes and many tricks to make rich men offenders especially projects upon the City of London Neverthelesse all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the great Charter and many promises passe from the King to that end and after that oathes and yet no performance this makes the people absolutely deny supplies Then the King pretends warres in France warres in Scotland and wars against the Infidels in the Holyland whither he is going the people upon such grounds give him ayds but finding all but pretences or ill successe of such enterprises they are hardned against supplies of him for the holy warre then he seems penitent and poures out new promises sealed with the most solemne execration that is to be found in the wombe of story and so punctually recorded as if God would have all generations to remember it as the seale of the covenant between the King of England and his people and therefore I cannot omit it M. Paris An. 1253. It was done in full Parliament where the Lords Temporall and Spirituall Knights and others of the Clergy all standing with their Tapers burning The King himselfe also standing with a cheerly countenance holding his open hand upon his brest the Archbishop pronounced this curse ensuing By the authority of God omnipotent of the Sonne and of the holy Ghost and of the glorious mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the holy Martyr and Archbishop Thomas and of all the Martys and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God We Excommunicate and Anathematize and sequester from our holy mother the Church all those which henceforth knowingly and maliciously shall deprive or spoile Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or councell by crossing in part or whole those Ecclesiasticall liberties or ancient approved customes of the Kingdome especially the liberties and free customes which are contained in the Charters of the common liberties of England and the Forrests granted by our Lord the King to the Archbishops Bishops Prelates Earles Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customes or being brought in have observed and all writers of
England albeit that other parts of the Kingdome had not the like present regard as the City of London had cap. 26. The Writ of precipe in capite shall not be granted of any free hold whereby a man may be in danger of loosing 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 free hold A Writ of praecipe in capite might be had upon a surmise that the free hold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoile of the demandants case and therefore I thinke the charter of King John instead of the word court hath the word cause There shall be but one known weight and measure cap. 27. and one breadth of Cloathes throughout the Realme of England This law of weights and measures was anciently established amongst the Saxons Ll. Edgar c. 3. 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 bredth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudiciall to the common trade of the Kingdome it was setled in this manner to avoid deceit and to establish a known price of Cloths 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 cap. 28. It was a Law of latter originall made to take away a Norman oppression for by the Saxon law as hath been already noted no man was imprisoned for crime not baylable beyond the next County court or Sheriffs Torne but when those rurall Courts began to lose their power and the Kings courts to devoure trials of that nature especially by the meanes of the Justices itinerant which were but rare and for divers yeeres many times intermitted during all which time supposed offenders must lie in prison which was quite contrary to the liberty of the freemen amongst the Saxons it occasioned a new device to save the common liberty by speciall Writs sued out by the party imprisoned or under baile supposing himselfe circumvented by hatred and malice and by the same directed to the Sheriffe and others an inquisition was taken and triall made of the offence whether he deserved losse of life or member and if it were found for the supposed offender he was bailed till the next comming 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 counterchecke from the Law Or first rather a regulation West 1. cap. 11 for it was ordained that the inquest should be chosen upon oath and that two of the inquest at the least should be Knights and those not interressed in the cause but yet this could not rectifie the matter for it seemed so impossible to doe justice and shew mercy this way Glocest cap 9. that the Writ is at length taken away and men left to their lot till the comming of Justices itinerant But this could not be indured above seven yeeres for though the King be a brave souldier West 2. cap. 29. and prosperous yet the people overcome him and recover their Writs de odio atia againe cap. 29. Lords shall have the Wardships of their Tenants heires although they hold also of the King in Petit Serjeanty Soccage Burgage or fee Farme Inferiour Lords had the same right of Wardships with the King for their tenures in Knightservice although their tenants did hold also of the King unlesse they held of him in Knight-service which was a service to be done by the tenants 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 Armes or other utensiles this was no Knightservice though such utensiles concerned warre Glanvil lib 7. cap. 9. but was called Petit Serjeanty as in the Lawbookes doth appeare Neverthelesse Henry the third had usurped Wardships in such cases also and the same amongst others occasioned the Barons wars cap. 30. No judge shall compell a freeman to confesse matter against himselfe upon oath without complaint first made against him Nor shall receive any complaint without present proofe This law in the originall is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in expresse words it is thus No Judge shall compell 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 inquired after and therefore they used in such cases to put him to oath and if he denied the matter or acquitted himselfe 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 tricke first brought in by the Clergy and the temporall Judges imitated them therein and this became a snare and sore burden to the subjects To avoyd which they complaine of this new kind of triall and for remedy of this usurpation this law reviveth and establisheth the onely and old way of triall for Glanvill saith Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia Bracton fo 106 and therefore no man ought to be urged upon such difficulties unlesse by the expresse law of the land The old way of triall was first to bring in a complaint and witnesses ready to maintaine the same and therefore both appeales and actions then used to conclude their pleas with the names of witnesses subjoyned which at this day is implied in those generall words in their conclusions Et inde producit sectam suam that is he brings his sect or suite or such as doe follow or affirme his complaint as an other part also is implied in those words Et hoc paratus est verificare Seld. super Hengham For if the plaintiffs sect or suit of witnesses did not fully prove the matter in fact the defendants averment was made good by his own oath and the oathes of twelve men and so the triall was concluded No free men shall be imprisoned or disseised of his freehold cap. 31. or liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peeres Nor shall justice be
or provide for future generations Neverthelesse if all be granted viz. that this Statute is but a present order that the Armes therein are too slight to resist an enemy and the end thereof was onely to enable the Kingdome against Thieves and Robbers yet could not Edward the first pretend to have any power to assesse Armes at pleasure upon occasion of warre for the defence of the Kingdome nor is there any president in story that countenanceth it seeing Henry the third and Henry the second in their course used the rule secundum facultates as had been formerly observed and the rule foregoing tended onely to freemen and their Lands Nor did King John disclaime the same but pursued it and yet if there be any president of prerogative in story which King John had not that King will be looked upon as a King of wonderment I say King John pursued it when he was in the strength of his distemper threatned by the Pope provoked by the French King now ready in the field vexed by his people and himself scarce himselfe summons to defend himselfe themselves M Paris An. 1213. and the Kingdome of England all men that ought to have Armes or may have Armes and such as have no amres and yet arma habere possint let them also come ad capiendum solidatas nostras and accordingly there came a vast number not onely of the Armed men but of the unarmed multitude who afterward were sent to their own home when victuals failed Hitherto therefore King John not above three yeeres before his death held himselfe to the assessment to Armes onely of such as had Lands and at this time of exigency others unarmed were summoned to take Armes from the King with their pay or otherwise they must fight without weapons I am now come to the last generall point which concerneth the executive power of matters concerning the peace within this law touching which the Statute inforceth this that Constables in every Hundred and Franchise shall have the view of Armes and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy whereby it seemeth manifest that hitherto no law or custome was made against any for default of Armes but onely such as held by that tenure and therefore they had a shift to cause them to sweare to maintaine Armes and so might proceed upon defaults as in case of perjury and that the Parliament was still loath to set any certaine rule for penalty and absolutely declined it and left it under a generall periculo incumbente which its likely men would rather eschew by obedience then adventure upon out of a daring spirit unlesse their case was very cleere within the mercy of common reason and therefore such cases were left to speciall order of the Parliament rather then they would deliver such a rod as determining power was over into any uncertaine hand what ever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments order into the directory of Edward the first which thing reacheth farre for then in order thereunto the whole Militia of the Kingdome must have been under his safe command and whether it ever entred into the conceipt of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to us viz. Edw. 1. and from us by our Royall Seignory to defend force of Armes and all other force against our peace at all times that we shall please and to punish according to the laws and usages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound us to ayd as their good Lord alwaies when need shall be Two things are concurrant with this which is the body of the Statute if such it be the one is the preface or the occasion and the second is the conclusion upon the whole body of the same The preface first set down the inscription or direction of the Law not to the people but to the Justices of his bench and so it s in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certaine persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earles and Barons that in all Parliaments treaties and other assemblies which shall be had in the Kingdome of England for ever after all men shall come thereto without force and without Armes well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earles Barons and Cominalty being assembled to advise upon this matter nous eiont dit saith one coppy and nous eions dit saith another coppy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principall one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the bench and there enrolled and this is dated the 30. of October in the seventh yeere of his reigne which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon record in nature of a claime or protestando for saving the prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his owne that it might be more carefully nursed against the blast of time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civill affaires and so referred it to the Kings care to provide against imergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suite with the posture of affaires then in course for the Welsh warres were now intermitted and a quiet of three yeeres ensued in the middest of which Souldiers having liberty to doe nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsell
Chap. 48. Of the severall subservient jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries p. 131 Chap. 49. Of the immunities of the Saxon free men under the Norman government p. 135 Chap. 50. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned p. 138 Chap. 51. Of the like Lawes that concerne common interest of goods p. 142 Chap. 52. Of Laws that concerne common interest of Lands p. 144 Chap. 53. Of divers Laws made concerning the execution of justice p. 150 Chap. 54. Of the Militia during the Normans time p. 152 Chap. 55. That the entry of the Normans into this government could not be by Conquest p. 155 Chap. 56. A briefe survey of the sence of Writers concerning the point of conquest p. 158 CHap. 57. Of the government during the Reignes of Steven Henry the second Richard the first and John and first of their titles to the Crown and disposition in government p. 165 Chap. 58. Of the state of the Nobility of England from the Conquest and during the Reigne of these severall Kings p. 172 Chap. 59. Of the state of the Clergie and their power in this Kingdome from the Norman time p. 175 Chap. 60. Of the English Communally since the Norman time p. 188 Chap. 61. Of Judicature the Courts and their Iudges p. 189 Chap. 62. Of certaine Laws of judicature in the time of Henry the 2. p. 193 Chap 63. Of the Militia of this Kingdome during the Reigne of these Kings p. 205 CHap. 64. Of the government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government p. 207 Chap. 65. Of the condition of the Nobility of England till the time of Edward the third p. 221 Chap. 66. Of the state of the English Clergie untill the time of Edward the third and herein concerning the Statutes of Circumspecte agatis Articuli cleri and of Generall Councels and Nationall Synods p. 225 Chap. 67. Of the condition of the Free men of England and the grand Charter and severall Statutes concerning the same during the Reigne of these Kings p. 253 Chap. 68. Of Courts and their proceedings p. 284 Chap. 69. Of Coroners Sheriffs and Crowne pleas p. 286 Chap. 70. Of the Militia during these Kings reignes p. 294 Chap. 71. Of the Peace p. 300 PROLOGUE THe policie of English government so farre as is praise-worthy is all one with Divine providence wrapped up in a vaile of Kings and wise men and thus implicitely hath been delivered to the World by Historians who for the most part doe read men and weare their Pens in decyphering their persons and conditions some of whom having met with ingenuous Writers survive themselves possibly more famous after death then before Others after a miserable life wasted are yet more miserable in being little better then tables to set forth the Painters workmanship and to let the World know that their Historians are more witty then themselves of whom they wrote were either wise or good And thus History that should be a witnesse of Truth and time becomes little better then a parable or rather then a nonsence in a faire Character whose best commendation is that it s well written Doubtlesse Histories of persons or lives of men have their excellency in fruit for imitation and continuance of fame as a reward of vertue yet will not the coacervation of these together declare the nature of a Common-weale better then the beauty of a body dismembred is revived by thrusting together the members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queenes of this Realme may justly challenge the honour of passing many excellent Lawes albeit its the proper worke of the representative body to forme them yet to no one nor all of them can we attribute the honour of that wisdome and goodnesse that constituted this blessed frame of government for seldome is it seen that one Prince buildeth upon the foundation of his predecessour or pursueth his ends or aimes because as severall men they have severall judgements and desires and are subject to a Royall kind of selfe-love that inciteth them either to exceed former presidents or at least to differ from them that they may not seem to rule by coppy as insufficient of themselves which is a kind of disparagement to such as are above Adde hereunto that it s not to be conceited that the wisest of our ancestors saw the Idea of this government nor was it any where in president but in him that determined the same from eternity for as no Nation can shew more variety and inconstancy in the government of Princes then this especially for three hundred yeeres next ensuing the Normans so reason cannot move imagination that these wheeles by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aime therefore shall be to lay aside the consideration of man as much as may be and to extract a summary view of the cardinall passes of the government of this Kingdome and to glance at various aspects of the ancient upon the moderne that so these divers Princes and wise councels in their different course may appeare to be no other then the instruments of him that is but one and of one mind whose goings forth have been in a continuall course of Wisdome and goodnesse for our selves in these latter daies and herein I am encouraged because I am not in danger of temptation to flattery or spleene nor pinched with penury of grounds of observation having to doe with a Nation then vvhich a cleerer miror of Gods gracious government is not to be found amongst all the Nations and peoples under Heaven The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and
conquest was the Clergy a considerable part of the Kingdome in those daies when as in every Nation they grew checkmate and in this Kingdome had well nigh the one halfe of the Knights fees and thereby a principall part of the strength of the Kingdome besides the consciences of them all and for a reserve they had the Pope in the reare whose power in every Kingdome was little inferiour to that of the Kings owne and therefore sufficient to stop an absolute conquest unlesse it were first conquered But the King came in upon great disadvantages in both these regards For whereas his pretence upon his entery was to advance justice principally toward the Clergy 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 Clergy the other as Judge of the title of the Crown by the Kings own election and that by sentence for the King had merited of him if not to hold the Crown it selfe 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 doe with the Church then will stand with the Popes liking unlesse he meaned to adventure himselfe and all he had into the danger of the great curse of which the King would seem more sensible then perhaps he was Nor were those times of the Church so moderate as to bring forth Churchmen 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 lesse 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 attaine by conquest any thing in this Kingdome wherein the Pope or Clergy claimed ought to have or doe 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 Hoveden lib. 6. both Lords and others that by affinity and consanguinity were become Englishmen to the Norman use others were purchased thereunto by the Clergy that were zealous for the Popes honour that was engaged in the worke Ingulsus 512. Of those likewse 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 ayd least their Duke should be too great for the Dutchy It was therefore wisdome in the Conquerour to settle the English affaires in the fairest way to gaine them for himselfe 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 what ever it should be These were afterwards by the King looked upon not as enemies as the president of Edwin of Sharneburne witnesseth sufficiently but upon such as either were or by faire carriage would be made his friends Gloss 227. and therefore he concluded them under a law of assurance that they that had been so peaceable should have and enjoy their Lands as intirely 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 Clergy 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 Kingdome were ever under other change then of the Governours owne person CHAP. LVI A briefe survey of the sence of Writers concerning the point of conquest THe clamours in story that the Conquerour altered and made laws at pleasure brought in new customes 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 Kings 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 complaine But if the Reader shall apprehend these passages in Writers to be no other then sober relations then were it not amisse to consider from what sort of men these complaints or relations doe proceed viz. from Writers that have been cloystered men little seen in affairs of State more then by common report and rumour prejudiced by the Kings 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 misrelate as to mistake For if we shall touch upon particulars I thinke no man will deny but the King allowed property indifferently as well to Normans as English if the premisses 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 speake yet all might be deservedly done in a legall way and in execution of justice whereof Histories are not altogether silent Neverthelesse if in the prosecution the King did shew a kind of rage and some rashnesse it might be imputed to the common infirmity of great men for as oppression upon those that are inferiour makes them mad so doth treachery against them that are superiour make them little other especially if they be overtaken with a fit of passion in the instant or their minds wrapped into a whirlpoole of affaires But the change of laws makes the greater noise wherein what change they suffered may appeare from the premisses if Writers have delt uprightly Otherwise generall imputations without particular instances will never sway opinion contrary to the currant of the laws that are published especially seeing we have observed the errour of the best Historian of those times in calling those things new which were anciently used in England before Normandy was in a condition of a state Yet if this should be granted and that there were such change of laws as is pretended it makes nothing to the point of conquest so long as the new laws are made by advice of common Councell and for the common good and so long as they are established to be