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
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
there as may appeare in the severall relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he maketh much use of and therefore I shall be bold to make the best use of him that I can likewise in Vindicating the truth of the point in hand For whatever this Councill was it s the lesse materiall seeing the same Author recites a president of King Aethelbert within six yeares after Austins entry into this Island which was long before this Councill which bringeth on the Vann of all the rest of the Opponents instances which King called a Councill styled Commune Concilium tam Cleri quam Populi Pag. 126. and in the conclusion of the same a Law is made upon the like occasion Si Rex populum Convocaverit c. in both which its evident that in those times there were Councils holden by the People as well as the Magnates or Optimates His next instance is in the yeare 694. which is of a Councill holden by the Great Men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also minde him that the same Author reciteth a Councill holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and is very probable that all the Wise men of the Kingdome were not concluded within the Lordly dignity The third instance can have no better successe unlesse he will have the Pope to be allowed power to call a Parliament or allow the Arch-Bishop power to doe that service by the Popes command for by that authority this what ever it be was called if we give credit to the relation of Sir Henry Spelman who also reciteth another Councell within three leaves foregoing this Concil Britt Pag. 212. called by Withered at Barkhamstead unto which the Clergy were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Ibid. pa. 194. Souldiers or Knights were in the common Councels as well as other Great Men. In the next place he bringeth in a Councill holden in the yeare 747. Ibid. pa. 242. 245. which if the Arch-Bishop were then therein President as it s sayd in the presence of the King was no Parliament but a Church-mote and all the conclusions in the same doe testifie no lesse they being every one concerning Ecclesiasticall matters Pag. 219. And furthermore before this time the Author out of whom he citeth this Councill mentioneth another Councill holden by Ina the Saxon King in the presence of the Bishops Princes Lords Earles and all the wise old Men and People of the Kingdome all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastry of Glastenbury was made not onely in the presence of the Great Men but Cum praesentia populationis and he saith that Omnes confirmaverunt which I doe not mention as a worke necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty yeares after hee meeteth with another Councill which he supposeth to be a Parliament also but was none unlesse he will allow the Popes Legate power to summon a Parliament It was holden in the yeare 787. and had he duely considered the returne made by the Popes Legate of the Acts of that Councill Pag. 300. which is also published by the same Author hee might have found that the Legate saith that they were propounded in publike Councill before the King Arch-Bishop and all the Bishops and Abbots of the Kingdome Senators Dukes or Captaines and people of the Land and they all consented to keep the same Then he brings in a Councill holden in the year 793. which he would never have set downe in the list of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it s sayd to be holden Anno 974. before nine Kings fifteene Bishops twenty Dukes c. which for ought appeares may comprehend all England and Scotland and is no Parliament of one Nation but a party of many Nations for some great matter no doubt yet nothing in particular mentioned but the solemne laying the foundation of the Monastry of Saint-Albans What manner of Councill the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the yeare 796. That Councill which is next produced was in the yeare 800. and is called in great letters Concilium Provinciale which he cannot Gramatically construe to be a Parliament yet in the Preface it is sayd that there were Viri cujuscunque dignitatis and the King in his Letter to the Pope saith concerning it Pag. 321. Visum est cunctis gentis nostrae sapientibus so as it seemeth by this and other examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Witagen-mote to Judge and conclude them There can be no question but the next three Presidents brought by the Opponent were all of them Church-motes Concil Brit. Pag. 328. For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters Concil Brit. Pag. 334. and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or
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
of Ecclesiasticall Empire and a title according thereunto which at length he attained from an Emperour fitted for his turne and this was enough to make him passe for currant in the Empire But Britaine was forsaken by the Roman Empire above 153 yeeres before so as though the Emperour could preferre his Chaplaines power or honour as far as his owne which was to the French shore yet Britaine was in another world under the Saxons power and not worth looking after till the plundering was over and the Saxon affaires setled so as some fat may be had then an instrument is sought after for the worke and none is found so farre fit to winde the Saxon up to the Roman bent as a Monke that was a holy humble man in the opinion of all but of those that were so in the truth and knew him This is Austin sent by Pope Gregory to doe a worke that would not be publiquely owned it was pretended to bring Religion to the Saxons in England therefore they give him the title of the Saxon Apostle but to be plaine it was to bring in a Church-policy with a kind of worship that rendred the Latria to God and the Dulia to Rome The Saxons were not wholy destitute of Religion and that Gregory himselfe in his Letter to Brunchilda the French Queen confesseth Indicamus saith he ad nos pervenisse Ecclesiam Anglicanam velle fieri Christianam Greg. Epist lib. 5. Epist 59. so as there was a good disposition to religion before ever Austen came and such an one as rang loud to Rome But farre more evident is it from the Saxons keeping of Easter more Asciatico which custome also continued after Austens comming fifty yeers sore against Austens will Bed hist lib. 3. cap. 25. the dispute between Coleman and Wilfride beares witnesse to that and it had been a miraculous ignorance or hardnesse had the Saxons a people ordained for mercy as the sequell shewed conversed with the Christian Britaines and Picts above 150 yeeres without all touch of their Religion Bed hist lib. 1. cap. 23. Lib. 3. cap. 4. If we then take Austen in his best colour he might be said to bring religion to the South-Saxons after the Roman garbe and his hotest disputes about Easter Tonsure the Roman supremacy and his owne Legatine power Bed hist lib. 1. cap. 27. Lib. 2. cap. 2. and his worthy Queres to the Pope shew he regarded more the fashion then the thing and the fashion of his person more then the worke he pretended for he loved state Greg. Epist l. 7. Epist 13. and to be somewhat like to the Legate of an Univerall Bishop and therefore of a Monke he suddenly becomes a Bishop in Germany before ever he had a Diocesse or saw England Concil Brit. 92. and after he perceived that his worke was like to thrive he returned and was made Archbishop of the Saxons before any other Bishops were amongst them Bed hist lib. 1. cap. 29. and after three yeeres had the Pall with title of supremacy over the British Bishops that never submitted to him His advantages were first his entrance upon Kent the furthest corner of all the Iland from the Britaines and Picts and so lesse prejudiced by their Church-policy and at that very time interessed in the Roman ayre above all the other Saxons for their King had married a daughter of France one that was a pupill to Rome and a devout woman Bed hist lib. 1. cap. 25. Greg. Epist lib. 9. Epist 59. she first brought Austen into acceptance with the King who also at that present held the chiefe power of all the Saxon Kings in this Isle which was now of great efficacy in this worke for where Religion and power flow from one spring in one streame its hard to chuse the one and refuse the other And thus Rome may thank France for the first earnest they had of all the riches of England and we for the first entrance of all our ensuing bondage and misery 2 Thes 2. Austen had also a gift or trick of working miracles wherein whither more suitable to the working of Satan or of God I cannot define It seemes they walked onely in the dark for either the Britons saw through them or saw them not nor could Austen with his miracles or finenesse settle one foot-step of his Church-policy amongst them happily they remembring the Roman Dagon liked the worse of the Roman woman and the rather because the Carriage of their messenger was as full of the Archbishop as it was empty of the Christian I would not touch upon particular passages of action but that it s so remarkable that Austen himselfe but a novice in comparison of the British Bishops the clearest lights that the Northern parts of the world then had and unto whom the right hand of fellowship was due by the Roman Canon should neverthelesse shew no more respect to them at their first solemn entrance into his presence then to vassals as I could not but note the same as a strong argument that his whole work ab initio was but a vapour of Prelacy This the British Bishops soon espied and shaped him an answer sutable to his message the substance whereof was afterward sent him in writing by the Abbot of Bangor and of late published by Sir Henry Spelman as followeth BE it known and without doubt unto you that we all and every one of us are obedient and subject to the Church of God and to the Pope of Rome and to every godly Christian to love every one in his degree in perfect charity and to helpe every one of them by word and deed to be children of God And other obedience then this I doe not know to be due to him whom you name to be Pope nor by the father of fathers to be claimed or demanded And this obedience we are ready to give and pay to him and to every Christian continually Besides we are under the government of the Bishop of Caerleon upon Uske who is to oversee under God over us and cause us to keep the way spirituall This was the Britons resolution and they were as good as their word for they maintained the liberty of their Church five hundred yeeres after this time and were the last of all the Churches of Europe that gave their power to the Roman beast and in the person of Henry the eighth that came of that blood by Teuther the first that tooke away that power againe Austen having met with this affront and perceiving that the Britons were stronger in their faith then he by his miracles cast about to try the Saxons curtesie that what the Ephod could not the Sword wrapt up therein should Bed hist lib. 2. cap. 2. Concil Brit. fo 111. I say not that he procured but he threatned or prophesied the destruction of the Monkes of Bangor and it came to passe and it s by writers loudly suspected Neverthelesse the
discoursed of the persons and precincts it now befals to touch upon the manner of the government of the Church by the Saxon Prelates which was not wrapped up in the narrow closet of private opinion but stated and regulated by publique Councell as well in the making as executing of lawes already made This course was learned from Antiquity Malmesb. gest pontif lib. 3. fo 263. and inforced upon them by a Roman constitution in the case that concerned Archbishop Theodore and Wilfrid upon this ground Quod enim multorum concilio geritur nulli consentientium ingerat scandalum These are most ordinarily called Synods although at the pleasure of the Relator called also Councels and are either Diocessan or Provinciall or Nationall and these either particular or generall Baronus An. 930. The generall consisted of all the Bishops and Clergy and such was the Synod under Archbishop Dunstan called The Nationall Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz England Sacrosancta authoritate nostra Synodali unitate Malmesb. gest pontif lib. 3. p 163. An. 680. and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councels and needlesse to instance amongst so many particulars The Provinciall Synods were sometimes convocated by the King and sometimes by the Archbishop Concil Brit. p. 191 310 318. and sometimes joyntly The Diocessan were called by the Bishop In the Nationall and Provinciall sometimes Kings moderated alone sometimes the Archbishop alone and sometimes they joyned together Ibid. 316 318 387. The Assistants were others both of the Clergy and Laity of severall ranks or degrees and it seemeth that women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for government and because few Lawes passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and alwaies the Lords and others Yet if the matters concerned the Church in the first act the King though present the Archbishop was neverthelesse president Concil Brit. 245 327 387. as it befell at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the reigne of Edward the elder though the Synod was called by the King yet the Archbishop was president Concerning all which it may be in the summe well conceived that the penning of the Councels aforesaid either the Clergy being the pen-men were partiall or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his owne person and sometimes deputed the Archbishop thereto The executing of Lawes was for the most part left to the Diocesan Synods yet when the cases concerned great men the more generall Councels had the cognisance and therein proceeded strictly sparing no persons of what degree soever Examples we finde hereof M Westm An. 955 958. Concil Brit. 479. amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdome for in the quarrell between Cenulphus the King and Archbishop Wilfrid the whole Kingdome was under interdict for six yeeres space and no Baptisme administred all that time Ibid. 332. Nor were they very nice in medling with matters beyond their Sphere even with matters of property for at a provinciall Councell for so it s called they bore all down before them even the King himselfe as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham Ibid. 319 332. Concil Brit. p. 334. The like also of another Synod concerning the Monastery of Westburgh It s true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much businesse and by that meanes a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doores after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their severall Diocesses The worke therein was to preach the word as a preparative then to visit inquire of the manners of the Clergy in the worship of God Mag. cent 8. cap 9. and of all matters of scandall and them to correct These Synods were to be holden twice every yeere at certaine times and if they met with any matter too hard for them to reforme they referred it to the Provinciall or Nationall Synod CHAP. XIV Of Causes Ecclesiasticall AS the power of Synods grew by degrees so did also their worke both which did mutually breed and feed each other Heresie An. 446. Their worke consisted in the reforming and setling matters of doctrine and practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first president of Synods that we have extant and herein it will admit of no deniall but in the infancy of the Church the teachers are the principall Judges of the nature of errour and heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes it selfe party in judging of truth and errour joyntly with the first teachers And therefore it s not without reason that in that first Synod although Germanus was called Judex Beda hist l. 1. yet the people hath the name of Arbiter and t is said that they did contestare judicium Blasphemy Blasphemy was questionlesse under Church-censure but I finde no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the tongue of the delinquent Concil Brit. p. 341. An. 840. but it may be feared that neither the Saxons nor their Roman teachers were so zealous for the honour of Gods name as to regard that odious sinne unlesse we should account them so holy as that they were not tainted therewith and so needed no law But Apostacy was an early sinne and soon provided against Apostacy An. 314. Concil Brit. 41. Ibid. 376. the Church-censure was allowed of in Britaine before the Saxons Church had any breath
adoration This hath mounted up Kings to the top more then their own ambition and made them undertake what they ought not because we esteem more highly of them then we ought I speak not against due but undue obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion Concil Brit. p. 333. as they did many times and advised others to doe the like Nor had Kings by degrees become beyond controlle and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldnesse to set a Law upon the exorbitancy of their King M. Westm An. 854. as in that case of Aethelwolfe and his Queen amongst others may appeare but that was like some enterprises that owe more to extremity of occasion then to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Free men called anciently Frilingi or free born or such as are borne free from all yoke of arbitrary power and from all Law of compulsion other then what is made by his voluntary consent for all free men have votes in the making and executing of the generall Laws of the Kingdome In the first they differed from the Gauls of whom its noted that the Commons are never called to councell Caes Com. lib 6. nor are much better then servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt Tacitus and therefore those that were elected to that worke were called Comites ex plebe and made one ranke of free men for wisdome superiour to the rest Another degree of these were beholding to their riches and were called Custodes Pagani an honourable title belonging to military service Limb. in 4. fo 71 and these were such as had obtained an estate of such valew as that their ordinary armes were a Helmet a Cote of Maile and a guilt Sword The rest of the free men were contented with the name of Ceorles or Pagani viz. rurall clownes who neverthelesse were the most considerable party both in war and peace and had as sure a title to their own liberties as the Custodes pagani or the Countrey Gentlemen had CHAP. XIX Of the villanies amongst the Saxons THe most inferiour ranke amongst the Saxons were those that of latter times were called villains But those also anciently divided into two degrees the chiefer of which were called Free-lazzi These were such as had been slaves but had purchased their freedome by desert and though they had escaped the depth of bondage yet attained they not to the full pitch of free men for the Lord might acquit his own title of bondage but no man could be made free without the act of the whole body Tacitus And therefore the Historian saith that they are not multum supra servos or scarce not servants They are seldome of account in any family never in any City But in Kingdomes sometimes advanced above the free men yea above Nobles Those are now adaies amongst the number and ranke of such as are called coppy holders who have the priviledge of protection from the Laws but no priviledge of vote in the making of Laws The most inferiour of all were those which were anciently called Lazzi or slaves those were the dregs of the people and wholly at the will of their Lord to do any service or undergoe any punishment Tacitus and yet the magnanimity of the Saxons was such as they abhorred Tyranny and it was rarely used amongst them by beating torture imprisonment or other hard usage to compell them to serve they would rather kill them as enemies and this wrought reverence in these men towards their Lords and maintaintd a kind of generosity in their minds that they did many brave exploits and many times not onely purchased their own freedome but also brought strength and honour to the Kingdome And though the insolency of the Danes much quelled this Saxon Noblenesse yet was it revived again by the Confessors Laws which ordained that the Lords should so demeane themselves towards their men that they neither incurre guilt against God nor offence against the King or which is all one to respect them as Gods people and the Kings subjects And thus much of the severall degrees of men amongst the Saxons being the materials of their Common-weale a modell whereof in the making and executing of the Laws and manner thereof now next ensueth CHAP. XX. Of the grand Councell of the Saxons called the Micklemote IT was originally a Councell of the Lords and Free men afterwards Tacitus when they assumed the title of a Kingdome the King was a member thereof and generally president therein but alwaies intended to be present though actually and in his own person by emergent occasions he may be absent and sometimes by disability of his person he be unmeet to Vote or be President in such an assembly as it was in the Councell at Clano or Cleve in Wiltshire when the great case between the Monks and married Priests was concluded Malmesb. gest Reg. lib. 2. cap. 9. Lib. 5. An. 978. the King was absent as the story saith because of his minority and yet if writers say true he was then in the sixteenth yeere of his age The Lords were also neverthelesse in the same condition of priviledge as formerly and though it appeareth that the Kings had gotten the priviledge of summoning the grand meeting in his own name yet it was by advice of the great men and being met their votes were no other in value then as formerly for all their Laws were ex consilio sapientum and for ought can appeare out of antiquity the vote of the meanest continued as good as of the greatest Tacitus arbitrium est penes piebem And thus the Micklemote or Wittagenmote of the Saxons in England continued in the King Lords and Free men by the space of one hundred and fifty yeeres and in some parts of England nigh two hundred yeeres before ever the Roman Bishops foot entered or the Roman Clergy crept into the Councels of State Afterwards the Prelates were admitted de bene esse for advice as sapientes and continued by allowance how Canonically ipsi viderint for I understand it not especially as the Scripture was then expounded Nemo militans Deo implicet negotiis saecularibus yet if they be allowed what in those daies they ordinarily took up a degree of policy above devotion that knot is also soon untied I say they entered as Sapientes not as Prelati or Church-governours for then they had holden the same power in Church-matters agitated in the Wittagenmot that
discipline Ll. Canut cap. 58. if they followed their rule which was made not by the arbitry of the Generall but by Parliament These amongst other scattered principles concerning Sea-affaires may serve to let us know that the Law-Martiall and that of the Sea were branches of the positive Lawes of the kingdome setled by the generall vote in the Wittagenmot and not left to the will of a lawlesse Generall or Commander so tender and uniforme were those times both in their Laws and liberties CHAP. XXIII Of the government of the Saxon Kingdome in times of peace and first of the division of the Kingdome into shires and their Officers IF the Saxon government was regular in time of warre how much rather in time of peace All great works are done by parcels and degrees and it was the Saxons ancient way in Germany to divide their Territory into severall circuits or circles and to assigne to each their severall Magistrates all of them ruled by one Law like one soule working in severall members to one common good Thus they did here in England having found the Land already divided into severall governments they likewise what they conquered divided into severall parts called Comitatus or Counties from the word Comes that signifies a companion and the Counties thence called are nothing but societies or associations in publique charge and service But the Saxon word is shire or share that is a portion or precinct of ground belonging to this or that person or great Town and bearing the name of that person or Town and sometimes of the scituation of the people as North or South folke East or South Sex or Saxons This division by the names seems to be of Saxon originall and though by the testimony of Ingulfus and other writers Seld. Tit. Hon. it might seem to be done by Alfred yet it will appeare to be more ancient if the reader minde the grant of Peter pence made by King Offa wherein is recorded the severall Diocesses and shires out of which that grant was made under the very same names that they own at this day M. Westm An. 794. and that grant was more ancient then Alfreds time by the space of 80 yeeres Each of these Shires or Counties had their two chiefe Governours for distributive justice of these the Sheriffe was more ancient and worthy Officer being the Lieutenant Sheriffs and ayded by the power of the County in certaine cases for his Commission extended not to leavy warre but to maintain Justice in that County and within the same and in this work he was partly ministeriall and partly judiciall in the one he was the Kings servant to execute his Writs in the other he regulated the Courts of justice under his survey Ll. Edw. c. 35. He was chosen in the County Court called the Folkmote by the votes of the Freeholders and as the King himselfe and the Heretock were intituled to their honour by the peoples favour Coroners The Coroner though in originall later was neverthelesse very ancient he was the more servant or Officer to the King of the two His worke was to enquire upon view of manslaughter and by indictment of all felonies as done contra coronam which formerly were onely contra pacem and triable onely by appeale Miror cap. 1. Sec. 13. As also he was to inquire of all escheates and forfeitures and them to seize He was also to receive appeales of Felonies and to keep the rolls of the Crown pleas within the County It s evident he was an Officer in Alfreds time Miror p. 300. for that King put a Judge to death for 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 Sheriffe was Fits N. Br. 163 164. and from amongst the men of chiefest ranke in the County and sworn in their presence but the Kings Writ lead the worke 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 publique meetings of the Freeholders their meetings were either in one place or in severall parts of the County in each of which the Sheriff had the mannaging of the acts done there Folkmote or County court The meeting of the Freemen in one place was called the Folkmote by the Saxons saving the judgement of the honourable reporter Coke instit 2. p. 69. and of latter times the County court the work wherein was partly for consultation direction concerning the ordering of the County for the safety and peace thereof such as were redresse of grievances election of Officers prevention of dangers c. and partly it was Judiciall Miror p. 147. in hearing and determining the common pleas of the County the Church affaires and some trespasses done therein but not matters criminall for the Bishop was Judge therein together with the Sheriffe and by the Canon he was not to intermeddle in matters of blood yet neither was the Bishops nor Sheriffs worke in that Court other then directory or declaratory for the Free-men were Judges of the fact and the other did but edocere jura populo Ll. Canut Miror cap. 1. Sec. 15. yet in speciall cases upon petition a Commission issued forth from the King to certaine Judges of Oier to joyn with the others in the hearing and determining of such particular eases Miror cap. 5. Sec. 1. But in case of injustice or errour the party grieved had liberty of appeale to the Kings Justice Nor did the Common pleas originally commence in the County court Ll. Canut Ll. Edgar unlesse the parties dwelt in severall 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 preeminence Concil Brit. p. 197. tit 22. In those ancient times this County court was to be holden but twice a yeere by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings especiall Writ Ll. Edw. cap. 35 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 learne the Law to administer justice Ll. Edw. cap. 35 to provide remedy for publique inconvenience and to doe their fealty to the King before the Bishop and Sheriffe upon oath and in the worke of administring justice Ll. Edw. cap. 4. causes concerning the Church must have the precedency so as yet the Canon law had not gotten footing in England The other Court wherein the Sheriffe had the directory was in the meeting of the free men in severall
meeting or concourse of people for the sale of such commodities as their neighbourhood would not take off their hands And thus the greater Towns that had walls or Castles became the greatest Markets and others lesse and this made the neighbourhood of those Towns to repaire thither to buy as others to sell But time discovering a double inconvenience herein viz. that by these lesse publique sales in smaller Villages where little or no care of right or justice was had and by which means the word Pagan became a word of reproach many mens goods by clandestine contracts were lost and no care had of their recovery and which was yet more prejudiciall to the publique that the greater Towns appointed for the strength and defence of the Kingdome became ill provided with supply of victuall either for the present or future and what was had for the most part was gotten at the second hand and higher rate then the Countrey Villages had The wise men by publique edict laid a restraint of Markets in smaller Villages and more private places and thus the greater Towns having Markets formerly became more publique Markets not by any new right or priviledge from the Crown for it neither had such power nor could have but upon usurpation against the common right of such Towns and places of publique defence This restraint upon the reasons aforesaid was made first in the Saxon times as may appeare by their Laws but more clearly declared and confirmed afterwards by the Laws of the Normans which never gave any new right of Market overt unto those places of publique defence but onely did inhibit the same in the smaller Villages and private places In which respect although the Kings of this Nation in future times tooke leave to abolish that restraint which did lie upon some of those more private places for certaine reasons of State and so these places became Markets overt which formerly were none yet could they never take away that priviledge which nature it selfe cast upon those greater Towns being the very limbs of the Kingdome without wrong done to common right and the publique good nor abridge them of that power but that they might still use their liberty at times and places within their precinct as might best conduce with the benefit of the inhabitants of those places even as any particular free man may govern his own estate as him liketh best And thus upon the whole matter it s to be concluded that the ancient Burroughs of this Kingdome properly doe not hold their liberty of Market overt by prescription or charter but by common right and not as a Corporation made by charter but as they are a multitude of people anciently gathered together and united upon whom the strength and wealth of the Kingdom doth or did formerly much more depend then on any of the smaller Villages open Towns even as every free man possesseth and useth his proper inheritance and estate without particular priviledge derived from the Crown nor can the King take away the liberty of Market overt from such places more then he can take away the liberty of buying and selling from any free man to whom the Law alloweth a liberty of ownership This I submit to the censure of the learned in the Laws in regard of the different opinions concerning the same This liberty of Township thus made and the place and people inhabitants thereof being of such consequence in the publique administration had for their better support and safety liberty of Fortification Ll. Edw. cap. 1. Ll. Aethelst cap. 12. Ll. Aethelst cap. 13. Gloss and power to charge one another with the maintenance of these Fortifications by an imposition called Burghbote and held their Tenements under a rent to their Lord or King called Burgage as they were a body aggregate CHAP. XXXIV Of the Forrests BEsides other prerogatives of the Saxon Kings they had also a Franchise for wild beasts for the Chase which we commonly call Forrest being a precinct of ground neither parcell of the County nor the Diocesse nor of the Kingdome but rather appendant thereunto This savoured of the old German sport but by custome turned from sport to earnest For although in the first times the Saxons were so few and the Country so spacious that they might allow the beasts their farme as well as themselves their own People neverthelesse so multiplyed as of necessity they must intercommon either with Beasts or Fishes the former whereof however more cleanly yet the latter had the surest footing and was chosen as the least of two evils rather then for any likelyhood of good neighbourhood for as nature taught beasts to prey for themselves so men to defend their owne and this bred such a fewd between beasts and men as that Kings doubting to loose their game tooke in with the weaker that the world might see the happinesse of England where beasts enjoy their Liberties as well as men But this was as it were by compromise for it had been very hard to have pleased the free men who had liberty of game within their own ground by common right Ll. Canut c. 77 and to preserve the Kings liberty of Forrest coincident therewith had not the King imployed on the one side the power of a Dane that looked somewhat like a Conquerour and on the other side that which looked as like to the bounty of a King in allowing liberty of ownership to men inhabiting within the bounds of the Forest which at the first was set apart onely for the Kings pleasure and all his wits to make a Law somewhat short of a full freedome and yet outreaching that of bondage which we since have commended to posterity under the Forrest charter and yet for all that it proved a hard matter for Kings to hunt by Law and the Law it selfe a yoke somewhat too heavy for a Common-wealth to beare in old age if selfe denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of justice THus farre of the severall Tribes and members of this Commonweale which like so many Conduit heads derived the influence of government through the whole body of this Island and in every of which Judiciary power acted it selfe in all causes arising within the verge of that precinct some of which had more extraordinary triall before the King and his Councell of Lords according as the parties concerned were of greater degree or the cause of more publique concernment Examples hereof are the cases between the Bishop of Winchester and Leoftin in Aetheldreds time and between the two Bishops of Winchester and Durham in Edwards time but custome made this Court stoop to smaller game in latter times and to reach at the practise of the County court by sending the Kings Writs to remove certaine causes from the cognisance of those rurall judicatories to their sublime determination Glanvil lib. 6. cap. 6 7 8. And thus became the Councell of Lords as an Oracle to
the Germans It s true the words of the same Historian have misled some the words are Haeredes tamen successores cuique Liberi these taken collectively I grant may import somewhat tending that way but they may as properly be taken disjunctively that the children inherite by course and if none such were then the brothers if they failed then the unkles And it s not onely evident that in the publique succession to the Crown they had an eye this way but in the descent of private and particular estates as by many instances out of those old Histories may appeare and had any other custome been generall Alfreds rule by Moses Law had never succeeded nor could that other custome hold out against the constant desire of the Saxons to perpetuate their families in greatnesse and honour all which besides the expresse laws set forth in the Codes are in my conceit sufficient to induce an historicall faith that the generall course of descent was to the eldest sons and not to all joyntly Neverthelesse out of this estate of inheritance divers particular estates were created as well by common custome as by the especiall act of the owner of such estate Such of them as were wrought by custome was occasioned from marriage whereby if the man was setled of such estate as formerly hath been recited and died Dower his wife surviving by ancient custome she had her dower or third part of such estate of inheritance This custome though ancient yet was not originally from the Germans but from the Latines who used to give dower with the man Plut. vit Solon Apotheg Lacon and receive portion with the woman But the Germans learned from the Greeks otherwise for the Laws both of Solon and Lycurgus forbad the latter lest marriages should be made for reward and not grounded upon affection which as they conceived would be a means to maintaine the strength of mankind in generation And therefore Tacitus noteth this by way of Antithesis Dotemnon uxor marito sed uxori maritus offert The dower that was given in the first times was goods and these were utensiles for warre And the wife many times returned to the man tokens of her love in the same kind and not as gages of future maintenance unlesse we shall account warre their proper calling from whence their livelihood issued Succeeding times growing more calme changed the custome of fighting into trading and taught them to preferre the stock gotten by commerce before that of warre and so the dower was changed This course continued all the Saxons time for ought I can finde for not much above threescore yeeres before the conquest it was by a publique law confirmed Ll. Sax. Lamb. Edm. fo 76. that the Bridegroome before marriage should set forth that portion of goods that should be his wifes Ll. Sax. 50. Reg. 22. and these were ever afterward holden her own proper goods But if no such provision was made before marriage then the law or custome gave the wife halfe her husbands goods if she outlived him and if there were children then the whole estate in goods to provide for her selfe and them untill she tooke a second husband but if the husband suffered death as a malefactor the wife was to have but one third part Ll Sax. Lam. fo 14. Ll. Inae cap. 58 I finde no footsteps of Dower in Lands untill the Normans time who were also as well owners of the wifes personall estate as of their persons and before which time the Saxon wives in divers regards were more absolute and independant I say not more happy because they were never one with their husbands nor were they ever under the Law of free pledge as wives nor was the husband his wifes pledge as he was her husband although as a master he was free pledge for his servants for the Law was that in case the husband carried his wife away into another Lordship Ll. Edm. Lamb cap. 7. as he must give pledges that his wife shall have no wrong so she must give pledge by her friends that she shall do no wrong and she passed therefore as an appurtenant to her husband then in unity with him and her estate or portion was rather appurtenant to her then him for if she failed in her good carriage to her husband she was to make amends out of her own estate to her husband and if her estate sufficed not then her pledges were to satisfie the husband Ll. Sax. 50. Reg. 22. Neverthelesse what failed in the relation of the woman to the man was supplied in the relation of the man to the woman for besides the respect the men bare to the women as their wives they honoured them as German women that admired valour in all Idolized it in their husbands and shared in it themselves and upon occasion merited thereby not onely to be companions in honour but triumphers above men ye their Commanders and governours Nor was this the originall trick of the rude and uncompt Germans or Barbarous Britons but of the wise Greeks and received as may be supposed from the Lacedemonians upon as good ground as the wise of Leonidas the Lacedemonian King rendred who being asked why the Lacedemonian women ruled their husbands It s true said she Curtesie of England for we onely know how to obey our husbands A second particular estate which the Law derived out of the inheritance was advancement to the husband for the Saxons were not so stupid as to refuce favour proferred and therefore they made a law of Counter-tenure to that of Dower which we commonly call tenure by the curtesie of England which was but a perquisite of the wives estate given to the husband in case he over lived his wife and had issue by her born alive The name was probably given by the Normans who as it seemeth had no such custome and therefore they gave it the name from the English albeit since that time Scotland hath also allowed it amongst them who might probably bring it into this Kingdome or Country amongst the mingled people Ll. Alm. tit 92. Lindenbr cod for this custome or law is found amongst the ancient Almain laws differing onely from the law this day in the evidence of the title which now ariseth upon the birth of the child heard to cry when as in those daies the title vested not unlesse the child opened his eyes ut possit videre culmen domus quatuor parietes which toucheth not onely the opening of the eye but also the rowling of it about Estates that were derived out of the estate of an inheritance by the act of the party Estate taile either were such as concerned the whole inheritance or part thereof That which concerned the whole inheritance was nothing but a parcelling of it out according to the will of the giver and this was afterwards called estate Taile which passed also amongst some places by way of custome Ll.
And as at Tenis the Dane and Bishop served each other with the fond Countrey man that whether Lord Dane or Lord Bishop was the greater burden is hard to be determined Thus became ambicious Prelacy in its full glory and the poore Church of Christ clouded in darknesse and little hold left for recovery but onely by the liberty of the Saxon freeman 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 againe after the halfe 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 customes in some places which shew rather that the Danes were there then ruled here To summe up all The Saxon Commonweale was a building of greatest strength downward even to the foundation arched together both for peace and warre That by the law of Decenners wherein Justice was the bond this by their armies gathered not by promiscuous flocking of people but by orderly concurrance of families Tacitus kindreds and Decenners all choosing their own leaders and so honour love and trust conspired together to leave no mans life in danger nor death unrevenged It was a beautifull composure mutually dependant in every part from the Crown to the cloune the Magistrates being all choice men and the King the choicest of chosen election being the birth of esteem and that of merit this bred love and mutuall trust which made them as corner-stones pointed forward to breake 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 Lawes which in the people ruled as lex loquens and in the Magistrate as lex intelligens all of them being grounded on the wisdome of the Greekes and Judicials of Moses Thus the Saxons became somewhat like the Jewes divers from all other people their lawes honourable for the King easie for the subject and their government above all other likest unto that of Christs Kingdome whose yoke is easie and burthen light but their motion proved so irregular as God was pleased to reduce them by another way CHAP. XLIV Of the Norman entrance THus was England become a goodly Farme The Britons were the owners the Saxons the occupants having no better title then a possession upon a forcible entry with a continuando for the space of foure hundred yeares seldome quiet either from the claime and disturbances of the restlesse Britons or invading Danes who not onely got footing in the Country but setled in the Throne and after gave over the same to the use as it proved of another people sprung from the wilde stock of Norway and thence transplanted into a milder Climate yet scarcely civillized that in one Isle the glory of Gods bounty might shine forth to all the barbarisme of Europe in making a beautifull Church out of the refuse of Nations These were the Normans out of the continent of France that in their first view appeared like the pillar of the cloud with terrour of revenge upon the Danish pride the Saxon cruelty and Idolatry of both peoples but after some distance shewed like the pillar of fire clearing Gods providence for the good of this Island to be enjoyed by the succeeding generations Nor was this done by revelation or vision but by over-ruling the aspiring mind of Duke William of Normandy to be a scourge unto Harold for his usurpation and unto the people for their causelesse deserting the royall stemme yet because the haughtiest spirit is still under fame and opinion and cannot rest without pretence or colour of right and justice the Duke first armed himselfe with titles which were too many to make one good claime and served rather to busie mens minds with musing whiles he catcheth the prey then settle their judgements in approving of his way First he was cousin german to the Confessor and he childlesse and thus the Duke was nigh though there were nigher then he but the worst point in the case was that the Duke was a bastard and so by the Saxon law without the line nor was there other salve thereto but the Norman custome that made no difference so as the Duke had a colour to frame a title though England had no Law to allow it and this was the best flower of his Garland when he meant to solace himselfe with the English as may appeare by what his sonne Henry the first sets forth to the world in his charter whereby he advanced the Abby of Ely into the degree of a Bishoprick and wherein amongst his other titles he cals himselfe sonne of William the great Spicileg Qui Edwardo Regi successit in regnum jure haereditario But if that came short he had the bequest of the Confessor who had designed the Duke to be his successor and this was confirmed by the consent of the Nobility and principally of Harold himselfe M. Paris 1. An. Brit. Eccles 96. and in assurance thereof promised his sister to the Duke in marriage This countenanced a double title one by legacy the other by election and might be sufficient if not to make the Dukes title just yet Harold's the more unjust and to ground that quarrell that in the conclusion laid the Dukes way open to the Crown And for the better varnish the Duke would not be his own judge he referres his Title to be discussed at the Court of Rome and so flattered the Pope with a judicatory power amongst Princes a trick of the new stamp whereby he obtained sentence in his own behalfe from the infallible chaire The Pope glad hereof laid up this amongst his treasures as an estoppell to Kings for times to come And the King made no lesse benefit of estoppel against the English Clergy that otherwise might have opposed him and of assurance of those to him that were his friends and of advantage against Harold that had gotten the Crown sine Ecclesiastica authoritate and by that meanes had made Pope Alexander and all the Prelates of England his enemies M. Paris 2. But if all failed yet the Duke had now a just cause of quarrell against Harold for breach of oath and covenant Hist vit Eadm 5. wherein if Harold chanced to be vanquished and the Crown offered it selfe faire he might without breach of conscience or modesty accept thereof and be accounted happy in the finding and wise in the receiving rather then unjustly hardy in the forcing thereof And this might occasion the Duke to challenge Harold to single combate as if he would let all the world know that the quarrell was personall and not Nationall But this maske soon fell off by the death of Harold and the Duke must now explaine himselfe that it was the value of the English Crown and not the title that brought
which as some thinke was made advantagiously for the Pope himselfe in point of tenure but more probably in the covenants For the Conquerour was scarce setled in his seat but the Canon law began to speak in the voyce of a Royall law Spicil 167. Fox Mart. l. 4. First complaining of mis-government as if the Church were extreamly wronged by having the same way and law of triall with the Commons of England and then propounds foure severall expedients enough to have undone the whole Common-weale in the very entrance had not the superstition of those times blinded both Parliament and people and rendered them willing with that which their successors in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon law Church matters had the preheminence both in the Hundred and in the County and it was the Bishops duty to joyn with the Sheriff in those Courts to direct and see to the administration of justice and yet the Canon had been above three hundred yeeres foregoing in the negative No case concerning the Regiment of soules shall be brought before the secular Judge The Regiment of soules was a common place sufficient to containe any thing that was in order thereunto and so every one that hath a soule must be no more responsall unto the temporall Judge for any matter concerning it but unto the Ecclesiasticall power and this not onely in case of scandall as against the morall law or rule of faith but for disobedience done to the Canons made afar off concerning any gesture or garbe that may come within the savour of an Ecclesiasticall conceit That all delinquents against the Bishops laws shall answer the fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the triall of such matters shall be according to the law of the Canon and not according to that of the Hundred That is not by Jury but by witnesses in a clandestine way if the Bishop please or without any accuser or by more scrutiny or any other way that may reserve the Lay man to the breast of a prepossessed spirit of the spirituall Judge And thus the poore Countreyman is exposed to the censure of an unknown law in an unknown tongue by an unknown way wherein they had no footing but by an implicite faith And herein the providence of God I imagine was more manifest then the wisdome of man which was too weake to foresee events at so great a distance For questionlesse it was a point of excellent wisdome for the people now under a King of a rugged nature that would not sticke to catch whatsoever he could get to deposite part of their liberties into the hands of the Clergy from whom moderation might be expected as from friends and neighbours and as partners in one ship mutuall engagement to withstand the waves of prerogative of Kings that seldome rests till it breaks all banks and sometimes over-reaches its own guard and cannot return when it would And thus it fell out for many times the Pope and Clergy became protectors of the peoples liberties and kept them safe from the rage of Kings untill the time of restitution should come and became not onely a wall of defence to the one but a rock of offence to the other For the Tripple Crown could never solder with the English nor it with that the strife was for prerogative wherein if the Clergy gained the Crown lost and no moderation would be allowed For the conquering King was scarce warm in his Throne when as the Pope demanded fealty of him for the Crown of England Spicil 164 Baronus Anal. An 1068. and the Kings own good Archbishop and friend Lanfranke delivered the message as also Anselme did afterwards to William Rufus which though Kings had courage enough to deny yet it shewed plainly that the Popes meaned no lesse game then Crown-glieke with the King and people the Archbishops and Bishops holding the Cards for the Pope while in the interim he oversaw all The Norman Kings thus braved payd the Popes in their own Coyne and refused to acknowledge any Pope but such as are first allowed by their concurrance Edmer hist l. 1. p. 25. Thus have we the second bravado of the Canon Law for as yet it was not so fully entered as it seemed The words of the act of Parliament its true were generall yet their sence was left to time to expound and the course of succeeding affaires neverthelesse passed with a non obstante For whereas in those daies the Clergy claimed both legislative and executory power in Church matters the Normans would allow of neither but claimed both as of right belonging to the Imperiall power of this Island originally and onely As touching the legislative power its evident that notwithstanding the Canon that had long before this time voted the Laity from having to doe with Church matters yet the Norman Kings would never allow to the Metropolitans the power of calling Synods nor such meetings Edmer hist p. 6. 24. Spicil 163. but by their leave although it was earnestly contended for Neither could the Clergy prevaile to exclude the Laity out of their Synods being assembled nor from their wonted priviledge of voting therein albeit that for a long time by Canon it had been contradicted The differences between the Clergy and the Kings concerning these and other matters grew so hot that Kings liked not to have any Synods or meetings of publique Councell Epist ad Pascal pap and Archbishop Anselme complained that William Rufus would not allow any to be called for thirteen yeeres together which by the file of story compared with that Epistle made up the kings whole Reigne And this was questionlesse the cause that we finde so little touch upon Parliamentary assemblies in the Norman times Kings being too high to be controlled and Bishops too proud to obey But necessity of State like unto fate prevailes against all other interests whatsoever and the wisdome of Henry the first in this prevailed above that of his predecessors as farre as their will was beyond his For it was bootlesse for him to hold out against the Church that stood in need of all sorts to confirme to him that which common right as then it was taken denied him and therefore though it cost him much trouble with Anselme he recontinued the liberty of publique consultations and yet maintained his dignity and honour seemly well I shall not need to cleare this by particulars for besides the publique consultations at his entrance and twice after that for supply or ayd for his warres and the marriage of his daughter with the Emperour it s observed that the Archbishop of Canterbury
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
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
the Conquest and during the reigne of these severall Kings UNder the title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdome and learning and advancement into place of government and honour These were in the Saxons times the flower of the people flourishing onely from the honour that ascended from beneath their deportment then was full of cheere and safety to the people after that royalty sprung up the influence thereof upon them exhaled such a reciprocall interest backe againe as made them lesse regardfull of their own roote Whereas we see the more mature flowers are the more propence to turne head and looke downward to their own originall This distemper was yet much worse by the comming in of the Normans whose Nobility besides their titles of honour in their own Country obtained by custome such command and power amongst the meaner sort being souldiers under them in time of the service in the field that when the warres had breathed out their last neither of them could forget or were very carefull to lay aside This was observed by Kings and advantage espied to clime to the top of Monarchy by the helpe of these great men whom if they could make their own all would be theirs and wherein they had prevailed much more then they did if they had been wise enough to have maintained them in unity but in that failing Kings were necessitated to take parties and serve the Nobility to save the maine and thus continued they a considerable party in the gouernment of this kingdome from the Normans for the space of two hundred yeeres well nigh to the prejudice both of the growth of the prerogative of Kings and liberties of the Commons and benefit of none but the Lords who in those unquiet times were the chiefe Commanders in the field This errour of Kings was soon espied but could not be avoyded its naturall to man to be proud and to such to fall into contention another course therefore is taken viz. to raise up some so high as may overtop all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must beare their power where they cannot be personally present yet it is dangerous to bestow too much upon one man for there is no man fitting to be a King but himselfe that is a King and where kings are immoderate in bestowing power it many times workes much woe to the people and not seldome sorrow to the Kings themselves The place of the chiefe Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-generall throughout the kingdome A power and worke too great for any one man in the world that can make no deputies to mannage it Hoveden 443 375. Nubr lib. 4. cap. 14. and yet in those times you shall meet with one man made up of an Archbishop a Legate and chiefe Justice of England or a Bishop a Lord Chancellor a Legate and chiefe Justice of England and a strange kind of government must that needs be wherein the servants Throne is above his masters and a subject shall have a plenitudinary power beyond that which his Lord and King was as the times then were was capable of By these and such like pluralities the great men of England kept the Commons below and themselves above and probably rendred the temper of the government of this kingdome more Aristocraticall then in after ages And if their personall authority was of such value how much rather in their joynt assembly or court of Councell concerning which I must agree that as in their originall in Germany they did consult and determine of the meaner matters that is to say of matters concerning property and therefore were in their most ordinary worke meetings of Judges or Courts of Judicature and also matters of defensive warre because themselves were the Commanders and lastly in matters of sudden concernment to the State not onely to serve as eyes to foresee but to provide also if they can or otherwise to call in the ayd of the peoples advice so also they continued this course and it may be now and then as all Councels have done strained their endeavours beyond their reach especally since the Normans entrance and therefore I shall not deny but that they alone with the King and without the Commons have made many Laws and Constitutions some of which now are called Statutes although many of them in truth are no other then rules for Judicature which ordinary Courts may frame or Judgements in particular cases such as are the constitutions at Clarindon in Henry the seconds time and many other Laws which are reported to be made between the King and his Lords Nor can I looke upon such laws otherwise then as upon judgements in Courts of Justice in new points of controversie grounded upon ancient grounds which properly are not new Laws but the ancient rule applied to new particulars and being so published to the world may beare the name of Laws Ordinances Constitutions or Judgements the word Statute being of later times taken up and used in a more restrictive sence of which more in their due place Now that this Court was a setled Court of judicature Hoveden An. 1175. and so used may appeare in that fines were leavied therein and Writs of right determined as in that great case between the two Kings of Navarr and Castile Ibid. referred to the judgement of Henry the second and tried in this Court it s said that the triall was by plea and if need wereby battell The Judges in this Court were the Baronage of England for the entry of judgement in that great case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. so as though doubtlesse many were absent some being enemies others discontented others upon other occasions yet all might claime their votes as Barons The President over all the rest was the chiefe Justice or if the King were present then himselfe and by him was the sentence or judgement declared according to the entry in the 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 Councels 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 juridicall power to the three Courts at Westminster viz. the Kings bench Common pleas and Exchequer saving still the supreame 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 Clergy and their power in this Kingdome from the Normans time IF the prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much lesse in these times succeeding wherein the Clergy tooke up the Bucklers and beate both King and Commons to a retreat themselves in the interim remaining sole triumphers in the field In their first adventure they paced the stage no man appearing to oppose Steven then was King by their leave and their Bondservant and they might have any thing sobeit they would suffer him to enjoy his Crown His brother the Bishop was the Popes servant the Churchmens patron and the Kings surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better title then election conscience in those times was well enough satisfied in the breach of covenant on their part where on the Kings part it was first broken All this the King saw full well and therefore what can he deny to such benefactors Vacances of Churches he readily parts with and his right of investure of the Mitred Clergy he dispensed so as he opened the way to his successors of an utter dereliction of that priviledge He sees his brother the Legate deflower the Crown of England by maintaining appeales from the Courts in England unto the Court of Rome and he says nothing he is contented with the stumpe of the Crown and with Saul if he be but honoured above or before all others of the people it s his enough But the Clergy like the barren wombe hath not yet enough The King hath allowed them Castles and too late he sees that instead of being defencas against the Imperiall power of the Empresse they are now made bulwarkes against the lawfull power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himselfe is now summoned to answer this before a Legatine councell wherein his brother is President that was a bold adventure in them but it was extreame rashnesse in him to appeare and plead the cause of the Crown of England before a Conventicle of his own subjects And thus to secure Rome of supremacy in appeales he suffers a recovery thereof against his own person in a court of Record and so loses himselfe to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner the Empresse perceiving the power of the Clergy betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospell were now under their decree publish that the election of the King belongeth unto them and by them the Empresse is elected Queen in open Synod Stevens brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange president in the English government for posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the kings return unto his Throne again wherein he continued a friend to the Clergy during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in title and power and one that came to the Crown without preingagement by promise or Covenant saving that which was proper for a King A man he was that knew full well the interests in the government the growing power of the Clergy and the advantages lost from the Crown by his predecessor and to regaine these he smoothes his way towards these braving men speaks faire proffers faire M. Paris An. 1155. he would act to increase the bounds of the Church he would have the Popes leave to doe him a kindnesse and sobeit he might gaine an interest in Ireland he would take it from the Pope who pretended as heire of Jesus Christ to have the Islands and utmost parts of the earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Popes kindnes for the confirmation of the liberties and customs of his Crown and kingdom and no sooner desired then obtained This was the 2d example of a King of England but the first of an English king that sought to Rome for right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple crown Nor was Henry the second lesse benigne to the Church-men till he found by his deere bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himselfe as in that shamefull successe of the death of Becket may appeare wherein he yeelded the day up to the Clergy who formerly scorned to stoop to the greatest Potentate on Earth The state of Kings is to be pitied who must maintaine a politique affection above and sometimes against nature it selfe Constit at Clarindon if they will escape the note of tyranny in their undertakings and of a feeble spirit in their sufferings For the King having made Becket Chancellor of England then Archbishop of Canterbury he became so great that his fethers brushed against the Kings Crown who begins to rouse up himselfe to maintaine his honour and prerogative Royall The Bishops side with Becket the King intending the person and not the Calling singles out the Archbishop and hunts him to soile at Rome yet before he went the King puts the points of his quarrell in writing and made both Archbishop and Bishops signe them as the rights of his Crown and as the Consuetudines Avitae but Becket repenting went to Rome and obtained the Popes pardon and blessing the rest of the Bishops yeelding the cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then overspread the body of the Clergy in those daies and therefore I shall summe them up as follows cap. 1. Rights of Advousons shall be determined in the Kings Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergy Before the Normans time the County courts had them and there they were determined before the Bishop and Sheriffe but the Ecclesiasticall causes being reduced to Ecclesiasticall Courts and the Sheriffe the Laity sequestred from intermedling the Normans according to the custome in their own Country reduced also the triall of rights of Advousons unto the Supreame courts partly because the Kings title was much concerned therein and the Norman Lords no lesse but principally in regard that Rights require the consideration of such as are the most learned
withstood all though he had twice consented and once subscribed to them Constit at Clarindon having also received some kind of allowance thereof even from Rome it selfe cap. 12. Clergy men holding per Baroniam shall doe such services as to their tenure belong and shall assist in the Kings Court till judgement of life or member Two things are hereby manifest First that notwithstanding the Conquerours law formerly mentioned Bishops still sate as Judges in the Kings courts as they had done in the Saxon times but it was upon causes that meerly concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spirituall Courts and not the Clergy out of the Lay courts Secondly that the Clergy especially those of the greater sort questioned their services due by tenure as if they intended neither Lord nor King but the Pope onely Doubtlesse the use of tenures in those times was of infinite consequence to the peace of the kingdome and government of these Kings when as by these principally not onely all degrees were untied and made dependant from the Lord paramont to the Tenant peravale but especially the Clergy 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 halfe almost of the people in England being absolutely put under the dominion of a forraine power Sanctuary shall not protect forfeited goods cap. 13 14. 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 with out Licence Constit at Clarindon cap. 15. It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without licence 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 Churchmen to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into Monastery without the Lords consent cap. 16. Upon the same ground with the former for the Lord had not only right in his tenant which could not be aliened without his consent but also a right in his tenants children in regard they in time might by descent become his tenants so lie under the same ground of law for although this be no alienation by legall purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affaires 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 Captaine Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Samson like effected more then his life for the maine thing of all the rest the Pope gained to be friends for the losse of so great a stickler in the Church affaires as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishop espied a muse through which all the game of the Popedome might soon escape and the Pope be left to sit upon thornes in regard of his authority here in England For let the Metropolitane of all England be a sworne servant to the Metropolitane of the Christian world and the rest of the English Bishops not concur it will make the tripple Crown at the best but double Antiq. Brit. 302. F xe An. 1179. Alexander the Pope therefore meaned not to trust their faire 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 conceale their counsels 4. To ayd the Roman papacy against all persons 5. To assist the Roman Legate 6. To come to Synods upon Summons 7. To visit Rome once every three yeeres 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 soules unto her service that which remaines the King of England may keepe And well it was that it was not worse M. Paris An. 1167. considering that the King had vowed perpetuall enmity against the Pope but he wisely perceiving that the Kings spirit would up againe having thus gotten the maine battell durst not adventure upon the Kings reare least he might turn head and so he let the King come off with the losse of appeales Baronus Anal. 1164. Sec. 11. and an order to annull the customes 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 loose to the scarcrow power of Rome yet it befell him as many great spirits that favour prevailes more with them then feare or power for being towards his last times worne with griefe at his unnaturall sonnes a shaddow of the kindnesse of the Popes Legate unto him wonne that which the Clergy could never formerly wrest from him in these particulars granted by him M. Paris An. 1176. That No Clerke shall answer in the Lay courts but onely for the forest and their Lay fee. This savoured more of curtesie then justice and therefore we finde not that the same did thrive nor did continue long in force as a Law although the claime thereof lasted Vacances shall not be holden in the Kings hand above one yeare unlesse upon case of necessity This seemeth to passe 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 Kings 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 murders To prevent this evill the King loth to enter the List with the Clergy about too many matters let loose the law of feude for the friends of the party slaine to take revenge and this cost the blood of many Clerkes the Laity happly being more industrious therein then otherwise they would have been because the Ecclesiasticall Judge for the most part favoured them As an expedient to all which this Law was made and so the Clergy was still left to their Clergy and justice done upon such as sought their blood Clergy men shall not be holden to triall by battaile It was an ancient Law of the Saxons and either
the Clergymens then his Richard was yet a greater burden his reigne was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his father be blotted out but it was more troublesome to the people because it cost so much treasure was mannaged by such ill governours except the Archbishop of Canterbury and was unsuccesfull in most of his undertakings yet never invaded the liberties of the Commons by any face of prerogative But what wanted in him was made compleat and running over in his successor John who to speake in the most moderate sence of his government being given over to himselfe when he was not himselfe robbed the Lords of their authority bereaved the Church of its rights trode under foot the liberties of the people wasted his own Prerogative and having brought all things into dispaire comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regaine and Iohn could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gaine where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant government such as all men might learne which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in government is the law and the execution the latter being the life of the former and that of the Common-weale I say not that the law was augmented in the body of it or that the execution had a freer course then in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousnesse for the first whereof we are beholding to Glanvile in Henry the seconds time and for the latter to King Iohn or rather the Barons in his time in the publishing of the grand Charter or an enumeration of the liberties or customes of the people derived from the Saxons revived continued and confirmed by the Normans and their successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King Iohn soon repented of his oath the bond of his consent and to heale the wound got the Popes pardon and blessing thereupon so easie a thing it was for a sonne of the Roman Church to passe for a good catholique in an unrighteous way The execution of the Law was done in severall Courts according to the severall kinds of affaires whereof some concerned matters of crime penalty and this touched the Kings honour and safety of the persons of himselfe and his subjects and therefore are said to be contra coronam dignitatem c. The second sort concerne the profits of the Crown or treasure of the Kingdome The third concerne the safety of the estates of the people These three works were appointed unto three severall Courts who had their severall Judges especially appointed to that worke Originally they were in one viz. in the supream Court of Judicature the court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of severall men that were men of skil in such affaires and yet retained the Supremacy in all such causes still And because that which concerned the publique treasure was of more publique regard then the other the deputation thereof was cōmitted probably to some of their own members Gloss who in those daies were Barons of the Realm and afterwards retained the title but not the degree and therefore were called for distinction sake Barons of the Exchequer The particular times of these deputations appeare not clearly out of any monument of antiquity neverthelesse it s cleare to me that it was before Henry the seconds time as well because Henry the first had his Judex fiscalis Ll. Hen. 1. c 24. as Glanvile so frequently toucheth upon the Kings court of pleas which cannot be intended at the court of Lords for that in those daies was never summoned but in time of Parliament or some other speciall occasion but more principally because the Historian speaking of the Judges itinerant reciteth some to be of the common pleas Hoveden which sheweth that there was in those daies a distinction of jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advise of the Parliament after that the grand councell of Lords was laid aside by Kings and a Privy councell taken up unto whom could not regularly belong any juridicall power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime title of chiefe Justice who then was called Lord chiefe Justice of England and whose Office was much of the nature of the Kings Lieutenant in all causes and places as well in warre as peace and sometimes was appointed to one part of the Kingdome and by reason thereof had the name onely of that part and some other of the other parts The greatnesse of this office was such as the man for necessity of state was continually resident at the Court and by this means the Kings court was much attended by all sorts of persons which proved in after times as grievous to the King as it was burdensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergy as were also the under Officers of those courts for those times were Romes houre and the power of darknesse Other Courts also were in the countrey and were Vicontiel or Cours of Sheriffs and Lords of Hundreds and corporations and Lordships as formerly and these were setled in some place Hoveden but others there were which werr itinerant over which certaine Judges presided which were elected by the grand councell of Lords and sent by commission from King Henry the second throughout the Kingdome then devided into six circuits unto each of which was assigned three Justices so as the whole number of Justices then was eighteen The Office was before the comming of the Saxons over hither but the assignation was new as also was their oath for they were sworne But the number continued not long for within foure yeeres the King redivided the land into foure circuits and unto each circuit assigned five Justices making in the whole the number of twenty and one Justices for the Northern circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdome Hoveden 337. Ibid. 445. Neither yet did the first commission continue so long
of the validity of the will in its generall nature it was transmitted to the Ecclesiasticall court CHAP. LXIII Of the Militia of this Kingdome during the reigne of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that frō the Norman times the power of the Militia rested upon two principles the one the allegiance for the common defence of the Kings person and honour and Kingdome and in this case the King had the power to levy the force of the Kingdome neverthelesse the cause was still under the cognisance of the great councell so farre as to agree or disavow the warre if they saw cause as appeared in the defections of the Barons in the quarrell between King Steven and the Empresse and between King John and his Barrons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Armes either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extreame prejudice and the Kingdoms dammage Nor did the former principle oversway the latter although it might seem more considerable but onely in the times of civill peace when the Lords were quiet and the people well conceited of the Kings aimes in reference to the publique which happinesse it was Henry the seconds lot to enjoy for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate not onely gained honour abroad but much more amongst his own people at home who saw plainly that he was for forraigne imployment of honour to the Kingdome and not onely contented with what he had in England but imbarked together with the Laity against the growing power of the Clergy for the defence and honour of the priviledges of the Crown wherein also the liberties of the people were included They therefore were secure in the Kings way and suffered themselves to be engaged unto the Crown further then they or their ancestors formerly had been out of pretence of sudden extreame occasions of the Kingdome that would not be matched with the ordinary course of defence For the King finding by former experience that the way of Tenures was too lame a supply for his acquests abroad and that it had proved little better then a broken reed to the Crown in case of dispute with the people aimed at a further reach then the Lords or Commons foresaw and having learned a tricke in France brought it over although it was neither the first nor last trick that England learned to their cost from France which was a new way of leavying of men and Armes for the warre Hoveden 1181. by assessing upon every Knights fee and upon every free man of the vallew of sixteen Marks yeerly their certaine Armes and upon every free man of ten Marks yeerely valew their certaine Armes and upon every Burgesse and free man of an inferiour valew their certaine Armes 2. That these should be ready prepared against a certaine day 3. That they should be kept and maintained from time to time in the Kings service and at his command 4. That they should not be lent pledged sold or given away 5. That in case of death they should descend to the heire who if under age should finde a man to serve in his stead 6. That in case the owner were able he should be ready at a certaine day with his Armes for the service of the King ad fidem Domini Regis Regni sui 7. That unto this every man should be sworn I call this a new way of levying of Armes and men not but that formerly other free men and Burgesses found Armes albeit they held not by Knight service for it was so ordained by the Conquerours laws formerly used but now the King thrust in two clauses besides the altering of the Armes the one concerning the oath whereby all men became bound the other concerning the raising and ordering of men and armes which here seems to be referred to the King onely and in his service and this I grant may imply much in common capacity viz. that all the power of the Militia is in Henry the second But this tricke catched not the people according to the Kings meaning for the words ad fidem Regis Regni still left a muse for the people to escape if they were called out against their duty to the Kingdome and taught the doctrine which is not yet repealed viz. That what is not according to their faith to the Kingdome is not according to their faith to the King and therefore they could finde in their hearts sometimes to sit still at home when they were called forth to warre as may appeare in one passage in the daies of King John who had gathered together an Army for the opposing of forraine power at such time as the Pope had done his worst against him and the whole Kingdome which Army was of such considerable strength as I believe none since the conquest to this day exceeded or paraleld it but the Kings mean submission to the Popes Legate so distasted the Nobles and people as they left him to his own shifts and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthned himselfe against the Nobles yet the Lords comming from London brought on the sudden such a party as the King was not able to withstand and so he came off with that conclusion made at Renny meade which though in it selfe was honourable yet lost the King so much the more because it was rather gained from him then made by him CHAP. LXIV Of the Government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government ONe hundred and ten yeeres more I have together taken up to adde a period to this first part of discourse concerning English government principally because one spirit of arbitrary rule from King Iohn seemeth to breathe throughout the whole and therewith did expire The first that presents himselfe is Henry the third begotten by King Iohn when he was in the very first enterprize of oppression that occasioned the first Barons bloody warres and which this King was so miserable as to continue for the greatest part of his life and reigne and yet so happy as to see it ended about four yeeres before he died Although the soule be not ingendered from the parent yet the temperature of the body of the child doth sometimes so attemper the motion of the soule that there is in the child the very image of the fathers mind and this Henry the third lively expressed being so like unto his father Iohn in his worst course as if his fathers own spirit
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
may see the great difference between the Prince and the King in one and the same man The most part of those laws were little other then plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergy and therefore delivered the last law in a petitionary way to the Clergy because it concerned the execution of justice in prohibited times and yet bound up all with a salvo to himselfe and his prerogative like a wise King that would neither loose right nor doe wrong nor yet stickle to debate with his subjects now when as his eye was upon a further marke Walsing 46. For Leolin the Prince of VVales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to runne its course that he might have done the sooner Otherwise he had a seed of his fathers conceit that laws are not made for Kings as appeared afterward for after he had gotten his army into the field he tooke a fifteenth which was granted to his father and this was inaudito more M. West An 1276. but there was no disputing with power and therefore the subject must be contented rather to score it up against the future then require present pay so dangerous a thing it is for England that Kings should have occasion to gather armies though for never so honourable imployment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine yeeres travell before they could attaine the shore although it had been often within their view It may be the King found it advantagious for his government to maintaine an Army in the field under the colour of the Welsh warre that he might more bow his subjects to his own bent for during these warres the King made many breathings and tooke time to looke to the husbanding of his own revenue as those Ordinances called Extenta manerii and Officium coronatoris doe witnesse and the Statute of Bigami But the people were not altogether yet tamed for the times being still in warres and they occasioning much waste of treasure put the King to the utmost pitch of good husbandry and one degree beyond the same so as under colour of seising his own he swept up also the priviledges and liberties of his subjects M. West Polyd. virg some authours reciting the complaints of the Church men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another combuston had not the meeting at Glocester setled things for the present by referring the right of franchises to debate in the Eyer and ordering reseisure of such liberties into the subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth chapter of the Statute of Bigami Neverthelesse however debonaire the King seemed to be the sore between him and his subjects was not fully cured nor did the Lords trust him further then needs must for whether they served in the field or met at councell still they were armed and during this daring of each other were many profitable lawes made whiles neither party durst venture bloodshed in touching too nigh upon the priviledges of each other principally because the affaires in Wales were but laid asleepe and upon reviving might turne the ballance to either side The wars awake againe and therein are consumed nigh five yeeres more of the Kings reigne so as what ever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the prerogative of the Crown at home Nor had he scarcely breathed himselfe and army from the Welsh wars but he found both France and Scotland his enemies at once The King faced onely the first and fought the second which held him work the remainder of his daies at the same time also he arred both the Clergy and Laity at his own home as if providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the world whether his justice was spontaneous or by necessity for as yet he held the grand Charter at parley and therefore was rather eyed then much trusted Albeit he was put upon confidence in the subjects discretion for ayd of him in his continuall undertakings nor did they disclaime him herein however chargable it was for all seem willing he should be imployed any where so as not within the foure Seas It s probable the King knew it and therefore having made a voyage into France he changed the Scene of warre but to the other side as it were of a river in hope his Lords would follow but it would not be this angred him and he them nor would his Clergy allow him any ayd papa inconsulto and therefore he outs them from his protection these and his irregular preparations for warre by summons not onely of his Knights but all other that held Land worth 20 li. per annum Walfing 69. and taxes imposed by an arbitrary way increased rancour into a kind of state scoule little better then a quarrell for appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the grand Charter at the long runne and allowed it as the common law of the Kingdome and seconded the same with many succeeding confirmations in the 27 25 Edw. 1. 28 yeeres of his reigne as if he had utterly renounced all thought of a contrary way but the Stat. in his 28th yeere had a sting in the taile that was as ill as his saving of ancient ayd and prisals which was in the Stat. of confirmation of the Charters though it were omitted in this Stat. for the saving was of such a sence as time and occasion would move the Kings heart to make it and thus this Statute became like a Hocus pocus a thing to still the people for the present and serve the Kings turne that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good successe and the terrour of those that had stopped the broad way of his extravigant prerogative and therfore looks bigge rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his warres in Flanders all come and submit and as
it were in so many words let the King know that all England is now tame and like to be ridden at his discretion And now there 's nothing in his way but the fatall execration which he feared not in relation to Gods anger but rather to the exasperated Clergy and the dread of the Popes direfull thunderbolt To avoyd this storm he procures a dispensation from Rome to perjure and oppresse without sinne A tricke that he learned of his father and hid it within his breast till now about two yeeres before his end he brings it forth to tell all the world that hitherto he had been just against his will But having obtained his purpose he neverthelesse misseth of his end for a new King of Scots our old good enemies by divine providence suddenly crossed his way before him and now it boots not to contend for arbitrary rule in England and lose the Crown of Scotland which he once thought he had sure he faces about therefore and having spoken faire to his people for Scotland he goes Thus if all were not in a parenthesis the King intended a good period but God onely knowes what his furthest reach would have been if he had returned for he was taken out of this world in Scotland and so left this his government somewhat like an imperfect sentence Edw. 2. His sonne Edward should have compleated it but that he wanted his fathers sence and had too much of his grandfathers superbient humour that meeting with a stiffe spirit and a weak mind brought sudden fire into the course of government till it consumed it selfe in its own flame For this King having newly slipt out of a bondage of wise government under his father ranne the wilde chase after rash desires spending his former time in inordinate love and his later time upon revengefull anger little inferiour to rage and so in his whole government was scarce his own man His love was a president of a strange nature that commanded him from all the contentments of his Kingdome to serve one man a stranger and prostitute to all manner of licentiousnesse meerely for some personall endowments It shews that his judgement was weak and his affections strong and in that more weake because he discovered it before he was crowned like some of the weakest of the weaker sex the birth of whose minds are borne as soon as they are conceived and speake as soon as they are borne It s true that bravery of Spirit may worke after absolutenesse in Kings under the colour of some kind of wisdome But it is one thing to rule without law and another to live without rule the one dashes against the law of an English King and may put on the name of policy but the other destroyes the law of mankind and can beare no better name then of brutish desire All the while Gaveston was in view we finde nothing concerning common weale or monument of Parliament saving two Ordinances made by the King and such Lords as suted to the Kings way rather then to his wants 1. Edw. 2. The first was that de militibus the other de frangentibus prisonam for all the Kings labour was to royallize Gaveston into as high a pitch as he could and so to amaze his own eye sight with contemplating the goodlinesse of his person So as Gaveston is become the image of the King and presents his beames and influence into all parts of the Kingdom and according to his aspect they often change and waine yet at the best were but as in a misty night The Barons liked not this condition of state Idolatry they were willing to adore the King but they could not bow to an image they desired nothing more then that their King might shine in his proper glory Thrice is Gaveston banished thrice he returnes the last occasioned another civill warre wherein Gaveston lost his head thus the Lords removed the eclipse but little the better thereby they finde it a vaine labour to compell the Sunne to shine by force when it hath no light Though Gaveston be gone the mist of forraine councels prevaile this was bred in the blood fed with blood and ended in blood Through the glasse of forraine Councels all things seem of forraine colour the King to the people and the people to him The King at length begins to see himselfe undervalued and that it began in himselfe ventures himselfe into the warres with Scotland to win honour goes with much splendour but returns with the greatest blot that ever English King suffered confounded abroad and sleighted at home For the bravest men by ill successe are lost in common opinion or to speake in a higher strain where God doth not blesse man will not The King thus almost annihilated catches hold of Rome fawnes on the Clergy passes to them the Ordinances of Articuli Cleri and de prisis bonis cleri which lost the free men no right although it concluded the Crown And to caresse the Commons made the Statute de vice-committibus and the City of London likewise by the statute de Gavelletto But God saw all sorts of men runne at riot and sends in upon the Nation plague famine and other extraordinary testimonies of his displeasure even to the wonderment of other Nations and this brought a kinde of sobriety into affaires made all sorts tame and for the present onely prepared them for better times For the Kings time of longing againe is come and he must have new playfellows findes the Spencers or rather was found of them they grow in honour almost beyond the reach of the Nobles but not beyond their envie and are more secure then Gaveston in this that in their first sprouting the Kings Councell served himselfe and them to keepe in with the Commons by making good lawes such as the Statutes at Yorke of Essoines Attaints of Jurors Leavying of fines and Estreates into the Exchequer c. all of them promising good government The Barons neverthelesse like not the Spencers greatnesse and being by severall occasions exasperated joyne in one and occasion a new warre the King aided by the Commons who yet thought better of the King then of the Barons whom they saw prejudiced rather out of selfe-apprehensions then the publique good prevailed against the Barons and made them the first president of death upon the Scaffold Now the Spencers are Lords alone thinking themselves above reach of the once formidable Barons and the Commons too inferiour for their respect Thus lifted up they take a flight like that of Icarus They had so much of the Kings heart as they could not spare any part thereof to the Queen and she being as loath to spare so much for them as they had retired with the Prince to a reliefe which they brought from beyond Sea and with whom both Lords and Commons joyn The favourites missing of their wonted wings come down faster then they ascended and together with them the King himselfe all of
them irrecoverably Thus favourites instead of Cement between Prince and people becomming rocks of offence bring ruine sometimes to all but alwaies to themselves The King foresaw the storme and thought it safest first to cry truce with the people and come to agreement with them by common consent Prerog Reg. 17 Edw. 2. for the extent of his prerogative in certaine particular cases questionable and this summed up become a Statute for future times to be a ne plus ultra between the King and people Stat. de Homag The like agreement likewise was concerning services of tenants to their Lords and an oath framed to vindicate them from all incroachments Stat. Templar And something was done to calme the Clergy for the demolishing of the Templer Knights but the wound was incurable words are not believed if actions doe not succeed nor will oaths now made to bind Kings Bishops Councellors of State Sheriffs Majors Bailiffs or Judges to justice nor directions for regulating of Courts nor Ordinances against false moneys and weights nor all of them settle the people but they adhere to the Queen burning with jealousie against the King and both her selfe and the Lords with rage against the Spencers The King flies and being forsaken of the people the Lords the Clergy his own sonne and the wife of his own bosome and of God himselfe as the most absolute abject that ever swayed Scepter lost the same and being made a monument of Gods revenge upon inordinate desires in a King and of the English people being enraged not long surviving his demise he died a death meet to be forever blotted out of the thoughts of all subjects but to be had in everlasting remembrance of all Kings For if a Kingdome or Parliament misleads the King at the worst he is but misled by his Councell but if he be drawn aside by favourites he must thanke his own lust in the one he hath but the least share in the burthen in the other he must beare the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the third NOw was prerogative mounted up to the highest pitch or endeavoured so to be either through the weaknesse or power of these Kings of whom the first and last had little to ground upon but their own will and the other I meane Edward the first had more wisdome and power but was otherwaies distracted by forraine and more urgent imployments so as the worke fainted before it came to its full period The contest was between the King and Barons who till those daies were rather the great and richer sort of men then Peeres although they also were of the number I am not so sharpe sighted as to reach the utmost intentions of the Lords but their pretences are of such publique nature as its plaine that if their private interest was wrapped up therein they were inseparable and I shall never quarrell the Lords aime at private respects whenas its plaine the publique was so importantly concerned and yet I will not justifie all that I finde written concerning their words and Actions M Paris An. 1217. The speech of the E. of Cornwall to his elder brother and King Henry the third I will neither render up my Castle nor depart the Kingdome but by the judgement of the Peeres and of Simon the E. of Leicester to the same King That he lied and were he not a King the Earle would make him repent his word and of the Lords that they would drive the King out of his Kingdome and elect another and of the E. Marshall to Edward the first that he would neither goe into Gascoine nor hang such other doe savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some alay if the generall rudenesse of the time the Kings injurious provocations and the passions of colerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the kingdome of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above law the Lords exceeded not their places in pressing him with their councels to conforme to the laws and in maintaining that trust that was reposed in them in keeping off such sinister councels and invasions as might violate the laws and liberties or hinder the currant of justice concerning which I shall shortly state the case and leave it to the censure of others The government of the people of this Nation in their originall was Democraticall mixt with an Aristocracy if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in forraine parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the warre yet in time of peace was not of that heigth as to rule alone I meane that whereas the Lords formerly had the principall executory power of lawes setled in them they never were absolutely devested of that power by the accesse of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concurre the people generally sided with the Lords and so in conclusion the King suffered in the quarrell From this ground did arise from time to time the wanderings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this copartnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherwaies be supposed where Councels are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appeare against these Kings whereof we treat in cases where they appeared against the laws and liberties of the people it was neither new nor so heinous as it s noised for them who are equally if not more intrusted with the Common-wealth then the King by how much the Councellors are trusted more then the councelled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by threats and warre It s as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall adde to what hath been already said first that Knight service was for the defence of the kingdome principally Secondly that the greatest power of Knight service rested with the Lords not onely in
Circumspect agatis for in such cases the Ecclesiasticall Judge hath cognisance notwithstanding the Kings prohibition It s therefore neither grant nor release but as it were a covenant that the Clergy shall hold peaceable possession of what 〈◊〉 had upon this ground that the Kings prohibition hath no place in such things as are meerly spirituall So as hereby the Clergy got a judgement against the Crown by confession and an estopell upon this maxime that spirituall things belong to spirituall men into which ranke the Kings person cannot come thus thought they but what are spirituall causes and why so called are they such as concerne spirituall persons and things this was the old way marke but if we bring into this Category Adultery Fornication Incest c. we shall marre all Linwood tels us that mere spiritualia are such as are sine mixtura temporalium there may be somewhat in this though I cannot finde it nor can I make out the sence of the terme any other way but to limit it to such things which by common custome the Ecclesiasticall Judge had cognisance of for otherwise neither King nor law ever intended it to be expounded by the Canon nor was it the intent of this Writ Law or Licence call it what you will thus to conclude as the particulars following will manifest Fornication Adultery and such like punished sometimes upon the body and sometimes upon the purse These crimes the Saxons punished by the temporall power as I have already shewed The Normans continued this course if we may believe the Conquerours lawes which gave the fine in such cases to the Lord of the delinquent Ll. Gulielm cap. 14 19 371. And it is confessed that Henry the first and the second continued it as the Clergies own complaint just or unjust doth witnesse And what course was holden in the times of King Steven and John is to me unknown M. Paris addit fo 201. art 28. nor is it much to be regarded seeing the latter did he cared not what and the former to gaine the good will of the Clergy regarded not what he did The custome therefore cannot be made good for the Clergy much lesse to punish the bodies of freemen in such cases it being contrary to the grand Charter never asked by the Clergy formerly nor no complaint before now for deniall for my part therefore I shall not apprehend it of a higher nature then the Kings Writ which in those daies went forth at randome if the 44th Article of the Clergies complaints foregoing be true It be 〈◊〉 so contrary to the common sence of Parliament to give the bodies of the free men to the will of the Clergy to whom they would not submit their free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerke Defamation to reforme not to give dammage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the valew Mortuaries due by custome A pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the third who was King but yesterday as the Articles of complaint formerly set down doe manifest Nor had the Clergy ever better title then connivance of some such favourites as King Steven whose acts may peradventure be urged against Kings but not against the people unlesse their owne act can be produced to warrant it The learning in the Princes case wil I suppose admit of a difference Coke lib. 8. for it can never be made out that the Kings Councell in Parliament was the Magnum concilium Regni but onely the house of Lords and therefore whatever passed in Parliament by their onely advice might binde the King but could never reach the Commons nor their liberties And thus the grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it selfe of that which was originaly custome And therefore this law however countenanced can never be concluded to be other then a permission not onely because it was never the act of the Commons of England but because its contrary to the liberty of the free men and it s beyond all imagination that the Commons should out themselves from the protection of the Common law and yoke themselves their free holds and estates under the bondage of the Canons nor ought such a construction to be admitted without expresse words to warrant it As for the conclusion it is much worfe and not onely dishonourable to the King in binding his armes from protecting his Subjects by the Common lawes and so in some respects making them outlawes but dishonourable to it selfe whiles it makes prohibitions grounded upon Laws to be nullities by a late tricke of non-obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergy and thus are all set at liberty from any rule but that of licenciousnesse Neverthelesse this Law did thrive accordingly for we finde scarce any footsteps in Story of any regard had thereof till it became gray headed For it was not long ere the King stood in need of money and was necessitated to try the good wils of the Clergy more then once this occasioned them to be slow in answer and in conclusion to deny that they should ayd the King with any more money Antiq. Brit. vit Winchelsy Papa inconsulto The King hereupon disavowes the Clergy and leaves them to the Romish oppressions which were many and then the Clergy rub up all old sores and exhibite their complaints to their holy Father Baronus Annal An. 1306. to this effect 1. That the Kings Justices intermeddle in testamentary causes accounts of Executors and cognisance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the Kings carriages That the Kings Mils were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their goods were seised till their accounts were made That Ecclesiasticall possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the Kings Justices tooke cognisance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Churchyards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the Kings court for crimes and being acquitted the informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the Kings court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are inlarged in
Chaplaine was disturbed enjoyned the Abbat to revoke his presentation upon this ground Cum igitur c. in English thus Antiq. Brit. Eccles fo 209. 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 whiles 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 tooke leave to enact a sence upon a former Canon so long since made and which is all one to make a generall Councell 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 30 aff pl. 5. as was then conceived it will evidently appeare that the power of a Councell made up of a mixture of a few votes out of severall nations or the major part of them being unacquainted with the Laws and customes of Nations other then their own was too meane to set a law upon any particular Nation contrary to its owne originall and fundamentall Law And as the voters sent to the generall Councels from England were but few so neither were the Proctors as may appeare from this that Pope Innocent out of his moderation if we may believe it and to avoyd 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 prevaile yet so blemish the contrary party that what the Pope should get must cost him losse of spirits if not blood and although the Bishops being fast friends to the Pope by vertue of their oath did prevaile in power and the Pope had the controll of the Councell 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 minds of the greater number of persons present though their votes were fewer To avoyd this difficulty therefore for more surety sake the Popes enlarged the number of the voters for whereas it seemeth to be an ancient rule that onely foure Bishops should goe out of England to the generall Councell Hoveden An. 1179. in after ages not one Bishop could be spared unlesse in cases of great and emergent consequence as may appeare by the Popes letter to Henry the third and the case required it for the oppressions of the Pope began to ring so loud M. Paris An. 1245. as the holy chaire began to shake Neither did Kings confine themselves to any certaine number of Proctors notwithstanding the Popes moderation but as the case required sent more or lesse as unto that Councell at Pisa for the composing and quieting that great schisme in the Popedome Henry the fourth sent solemne Embassadours and with them nigh eighty in all But unto the Councell at Basell Henry the sixth sent not above twelve or thirteene as Mr Selden more particularly relateth Spicil 215. And unto the councell at Lions formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extorsions of the Court at Rome their Legates and Emissaries The summe of all will be that the Acts of generall Councels were but councels which being offered to the sence of the Parliament of England might grow up to the degree of Lawes if the Parliament liked them Neverthelesse Nation all Synods Synods in England undertooke the quarrell of Generall councels for Archbishop Peckham in a Synod 1280. enjoyned the constitutions made in the Councell at Lions to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong and before him Boniface made constitutions in opposition to the customes of the Kingdome so as the matter was now come to a kinde of contest whither Synods or Parliaments should hold supremacy in doubtfull cases concerning the limits of the Ecclesiasticall and temporall power for henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now thinke themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inbibendo quod sicut Baronias quas de Rege tenent deligunt nullo modo praesumunt concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt Rot Parliam 18 H 3. num 17. quod si fecerint Rex inde se capiet ad Baronias suas And this prevailed so farre as the Bishops durst not adventure too farre least they should goe beyond their guard and therefore they come and aske leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of bastardy wherein they would have had their consent that children borne before marriage to be made legittimate by the marriage subsequent Stat. Merton cap. 9. and yet they could not prevaile for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon law and the laws of the Normans sided with them and so they obtained not their desire although they still retained the triall of generall bastardy unto themselves Neverthelesse the times were such as Kings being too weakly assisted by the people and the Clergy strongly seconded by the Pope they tooke advantage of those times of distraction so as to hold themselves no further obliged to the King then the Pope and their own covetousnesse would allow them and to make all sure they had setled it so farre as they were able by a constitution that the Clergy were not bound to ayd the King Papa inconsulto Antiq. Brit. and they put it in practise in a Synod under Archbishop Winchelsie Anno 1295. in the time of Edward the first and although the King prevailed in the conclusion at that time yet from the times of Henry the third the Clergy for future times granted their aides to the King by themselves and a part from the rest of the body of the Kingdome and held themselves not bound by any ayd granted by the Parliament albeit that their own ayds granted in their Synods were not obligatory unto the body of the Clergy in this Kingdome unlesse first allowed and confirmed by the Parliament And thus is England become like a two bodied monster supported with one paire of legs CHAP. LXVII Of the condition of the free men of England of the grand
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
we finde that Henry the third about the latter part of his reigne when his government grew towards the dregs he having in the Kingdome two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings Gloss tit Baron but five and twenty Barons and one hundred and fifty of his Clergy Neverthelesse the law of King John was still the same and we cannot rightly read the law in such presidents as are rather the birth of will then reason Fourthly that no ayds were then granted but such as passed under the title Escuage or according there unto for the words are No Escuage shall be demanded or granted or taken but for redeeming the Kings person Knighting of his sonne or marriage of his daughter Nor is the way of assessing in these times different saving that instead of all the knights two onely are now chosen in every County the tenure as it seemeth first giving the title of that order and both tenure and order now changed into that title taken up for the time and occasion Fifthly that it was then the ancient custome and so used in the time of Henry the first that the advice of those then present was the advice of the whole and that their advice passed for a law without contradiction or notwithstanding the Kings negative voice for the words are The matter at that day shall proceed according to the councell of those that shall be present although all doe not come and therefore that clause in the Kings oath quas vulgus eligerit may well be understood in the future and not in the pretertence Last of all though not gathered from the text of this law whereof we treat yet being coincident with the matter it is observable that though the Clergy were now in their ruffle and felt themselves in their full strength yet there befell a posture of state that discovered to the world that the English held not the interest of the Clergy to be of such publique concernment or necessary concurrence in the government of the Kingdome Walsing An. 1297. as was pretended For the Clergy finding assessements of the Laity so heavy and that occasions of publique charge were like to multiply daily they therefore to save the maine stocke procured an inhibition from Rome against all such impositions from the Laity and against such payments by the Clergy and in the strength of this they absolutely refused to submit to ayd Edward the first by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them devided from it and not onely outed of all priviledge of Parliament but of all the priviledge of subjects into the state of praemuniri and thus set them up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry 3d. not satisfied with this ancient and ordinary way of assessement upon ordinary occasions tooke up that extraordinary course of assessement upon all the free men of the Kingdome which was formerly taken up onely in that extraordinary occasion of redeeming of the Kings or Lords person out of captivity and common defence of the land from piracy and under the title of Daneguelt which was now absolutly dead and hanged up in chains as a monument of oppression Neverthelesse it cannot be denied but that in former times the free men were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the law aforesaid of King John doth appeare and whereby its probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the third the fame suiting also with the third observation foregoing doth not a little favour the same for its expresly set down that in lieu of the Kings confirmation of the Charter of liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earles Barons and Knights but also the free men and all the Kingdome gave a fifteenth of all their moveables And thus have I summed up and compared both the copies of the grand Charters of Englands liberties saving two particulars inserted into the Forest laws of Henry the third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the third might as he was advised plead nonage M. Paris An. 1227. and so they might have been choked in their birth but being all consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much bloodshed and themselves into so many troubles to avoyd their own acts unlesse the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loath to publish the same to all men It s a strange vanity in great men to pretend love to justice and yet not indure to be bound thereto when as we see that God himselfe loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the third of this spirit faine they would undoe but could not It s true it was at the first but a Kings charter of confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be voided but by surrender from the whole body Marlbr cap. 5. Having thus summed up the liberties of the subjects and free men of England under this Charter I shall make some appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these prerogatives above all Lords Prerog Reg. cap. 9. The King shall have the custody of fooles and ideots lands for their maintenance and shall render the same to their heires And concerning mad-men and lunaticks cap. 10. the King shall provide a Baylisse for their maintenance rendring account to them when they are sober or to their administrators It is no lesse liberty or priviledge of the people that fooles and mad persons are to be ordered by tutors then children and therefore this may be annexed to the rest of the liberties as well as the other Neverthelesse it seemeth that the Laws tooke them into their regard in respect of their estates which might be abused to the prejudice of the publique rather then out of respect had to their persons Now because there is a difference between the disability
about these times and therewith ended both the worke and common use of the ancient iters and yet all these later courts joyntly considered have not the like comprehensive power that the iters had for they had the power of hearing and determining all causes both of the Crown and Common-pleas albeit in a different manner that is to say in the first times promiscuously united into one and the same person but soon after the Norman times and more clearly in the time of Henry the second that power was divided into severall persons some sitting upon the Common pleas others upon the Crown pleas The Judges of these journying courts were specially assigned by the King as in the case of the Gaole-delivery or setled by the Law upon the Judges of both benches at Westminster as in case of oyer and terminer Westm 2. ca. 29 and of the Assizes or Nisi prius saving that in the last case they were associated with Knights in the Counties for the taking of Assizes Ibid. c. 30. Now concerning the Courts that were setled some were setled or annexed to the Kings personall residence as the Chancellours Court for in these times it began to have a judiciary power of eminent stature and growing out of the decayes of the great chiefe Justice of England Then also the Kings bench was annexed by the same Law unto the Kings Court or personall residence Fleta Artic. sup cart cap. 15. as it anciently ever had that honour although it seems the endeavours were to make it like the Common pleas in that particular Another and last court that was setled in this manner was the Marshals court which in the originall onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places 5 E. 4 fo 129. because the Kings attendants were many in those times when as the Courts of justice continually attended on his person and this precinct was called the Vierge and all cases of debt and covenant where both parties were of the Houshold Artic. sup cart cap. 3. and of trespasses vi armis where one of them was of the houshold were handled in the court of the Verge or the Marshals court And inquests of death within the same shall be taken by the Coroner of the County with the Coroner of the houshold Other Courts were rurall and affixed also to some certaine place either of the County or Town or other particular place That of the County suffered in these times great diminution even almost to destruction by a Law restraining the power thereof onely to trespasses of 40 s. value or under Stat. Gouc cap. 8. for though formerly the Kings justices incroached upon the County courts and contracted suits before themselves which by the ancient law they ought not yet it was ever illegall and the County courts held their right till this law was made which kept under those inferiour Courts and made them of lesse account then formerly Neverthelesse the Kings Justicies or Writ to the Sheriffs oftentimes inableth the inferiour Court to have cognisance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations West 1. cap. 23. Faires and Markets viz. that no person should be sued in any of them which was not a debter or pledge there CHAP. LXIX Of Coroners Sheriffs and Crown pleas Coroners Westm 1. ca. 10 COreners shall be chosen in the county from the wisest greatest and chiefe men of the country Of these Officers formerly hath been spoken as touching their election qualification and worke this Law brought in no change of any former Law but onely of a former custome gained by these degenerating times which brought men into place that were farre unfit who otherwise of poore and mean condition maintained themselves by bribery and extortion and being found guilty had not sufficient to give recompence This law therefore revives the first law and hold these men to their worke of taking inquests and appeales by indenture between themselves and the Sheriff and these were to be certified at the next comming of the Justices Sheriffs Artic. sup cart cap. 9. The Free holders in every county if they will shall elect their own Sheriff unlesse the Sheriffwicke be holden in see This was indeed the ancient custome as the Officers of the Kingdome were eligible by the Common-councell of the Kingdome Miror cap. 1. Sec. 3. Stat. de vic 9 E. 2. so were also the Officers of the County chosen by the County But within a few yeeres in the time of Edward the second comes another law that the Sheriffs shall be appointed by the Chancellor Treasurer Barons of the Exchequer and the Justices which Law was made in favour of the people as by the file of that Statute doth more fully appeare for though at the first blush it may seem a priviledge lost by the free men that these great men should have the election of the Sheriff yet it proved a great advantage to the common quiet of the people in those times of parties and was so apprehended Otherwise as the case stood in those daies of Edward the second it was no time for him to gaine upon the peoples liberties Nor had the Statute of Articuli super cartas whereof we now treat been penned with these words if they will and questionlesse in these daies we now live in if the people had but a little taste of this seeming liberty of electing Sheriffs in the County court as formerly it was used it would be soon perceived that the election of these chiefe Officers were better disposed in some other hand if rightly pursued Homicide by mis-fortune shall not be adjudged murther Chancemedly Marlbr cap. 25. That the Saxons made difference between homicide by misfortune and that which was done felleo animo or with a spirit of gall formerly hath been shewed now what it was that altered the case I cannot say unlesse the violence cruelty and oppression of the times formerly all kind of manslaughter was finable I mean in the Norman times and so might more rationally be ranked into one degree but now the punishment began to change from forfeiture of estate and losse of member to death and forfaiture of estate and therefore it was more necessary to make the difference in the penalty seeing in the fine formerly a difference was observed and this difference to assert by a Law that might limit the invenomed spirits of the Judges of those daies Robbery Robbery punished with death This crime hitherto was punished by fine and losse of member at the utmost but is now made capitall punished with death One example whereof and the first that story maketh mention of we finde of an Irish Nobleman in the daies of Henry the third who suffered death for piracy and it was a law that then though rigorous yet seasonably was contrived to retard the beginnings and hasten the conclusion of a civill warre in a
of all Glanvil lib. 14. cap. 1. although the most heynous 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 baile for who so makes no conscience of breaking the prison his credit will little availe yet it must be acknowledged that the Law imprisoned few without baile in those foregoing times but in case of felony or execution but afterwards the cases of commitment being ordinary even in matters of mean processe and because mens credits waxing weake by the weaknesse of their estates now wasted by the civilwars there fore in Edward the seconds time a law was made to restrain the felony in such cases onely to the breach of prison by such as were committed for felony And as touching imprisonment upon excommunication its manifest that within five yeeres before the making of this law it was complained that such were set at liberty by the Kings Writ de homine replegnando without the Bishops consent Addit M. Paris But now the Clergy had gotten the day of the Law which did much decline from that guard of imprisonment but hated perpetual imprisonment Nor was this complaint grounded upon any other law then that of the Canon for the common law ever held the supreame cognisance of Excommunication within its own power as upon the Writ de quare excomunicato may appeare Other crimes are yet also by this law allowed baile such as are persons indicted of larceny before Sheriffs c. persons imprisoned upon slight grounds Receivers and Accessories before felony Trespassers persons appealed by provers after the death of the approvers If baile be granted otherwise then the law alloweth the party that alloweth the same shal be fined imprisoned render dammages or forfeit his place as the case shall require And thus the iniquity of the times was so great as it even forced the subjects to forgoe that which was in account a great liberty to stop the course of a growing mischiefe Spreaders of false news West 1. cap. 34. Publishers of false news whereby discord or slander may arise between the King and his people shall be imprisoned till he produce the relator It is therefore an offence against the Crown to procure or maintaine an ill conceipt in the King of the people or an ill conceipt in the people of the King and it s as well an offence against the Crown for the King to conceive ill of his people as for them of him But all must be grounded upon falshood for truth respects no mans parson all men are equally bound by that woe if they call good evill or evill good although difference must be made in the manner of representation And upon this ground of maintaining strife was a law made also against conspiracy to make or maintaine indictment 33 Edw. 1. suit or quarrell and it was likewise finable Merton cap. 3. Redisseisors and post disseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly redisseisin was under no other Law then that of disseisin but by this law made a matter belonging to the Crown and tried before the same Judges that had the power of inquiry of all offences against the Crown The penalty of imprisonment in this case was to be without baile Marlbr cap. 8. but onely by the Kings Writ de homine replegiando and yet even thus the penalty was not sufficient to restraine the offence and therefote a law was made to abridge the power of that Writ West 2. cap. 26. as touching such offender and they became irremediable as touching their liberty by that Writ besides that upon recovery had against them they lost double dammages Trespassers upon Parks West 1. cap. 20. Trespassers in Parks and Fishponds convicted within a yeere and a day shall render dammages suffer imprisonment for three yeeres and give security of good behaviour for time to come If any beasts be taken in a felonious manner he shall be proceeded against as a robber From the times of King Steven the Lords and great men endeavoured to advance their power and greatnesse so high above the meaner sort of free men as they made Kings continually jealous of their power Castles had been a bone of long contention between them but they being for the most part taken away the strife was about prisons and power to imprison offenders and that also after much opposition they layd aside yet the violence of these times being such as though felonies were somewhat dreaded trespasses of the highest nature were little regarded such as were riotous hunting in their Parks and fishing in their waters The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing but this was also denied them Merton cap. 11. though by Henry the third in his first time when as yet the government was not worsted by projects of arbitray power or corrupt counsels of forrainers nor himselfe a man able to sway with the Lords in matters that were of doubtfull prerogative And to speake indifferently its better for the liberty of the subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by law then by the warrants of great men especially in their own cases and therefore in this matter the Kings prerogative was a patron to the freemens liberty Neverthelesse these great men give not thus over their game for though in times of publique calamities little place is left for pleasure to any man yet when times are grown to more quiet pleasure revives and the great men renew their motion and though they could not obtaine prisons to their own use as they endeavoured at the meeting at Merton yet now they obtaine the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the losse of their pleasure And yet this law sufficed them not but they obtaine a further priviledge An. 21. Edw. 1. that such persons as are found so trespassing and refusing to submit may be killed without perill of felony CHAP. LXX Of the Militia during these Kings reignes THe Souldiery of England may be considered first in regard of the persons Secondly their armes Thirdly their service The persons were as formerly not onely such as were milites or tenants in Knight service but also such as served at the plow and concerning them both it is to be considered what the law made by Edward the second holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood Stat. de Milit. 1 E. 2. if they shew not cause to the contrary Regularly all tenants by Knightservice ought to be Knights but de facto were not so as in these times there was a
further worke to make a man a Knight then his bare tenure for such onely were milites facti who had both Lands sufficient to maintaine the Armes and state of a Knight and also a body fit to undertake the service in his own person and whereof he had given sufficient proofe in the field Others that had Land either had not sufficient maintenance or not habiliments of person and as not expected were laid aside of this sort were many by reason of the late civill warres in which they had much impaired both their bodies and estates This rendred the strength of the Kingdome and Militia so much decayed and the minds of men so weared that they began to love ease before the times would brooke it and a cessation from Arme before they had any mind to peace The Parliament espied the danger how necessary it was for the people to be well armed in these times of generall broile and upon that ground allowed this law to passe that all such as had Lands worth 20 li. yeerly besides reprisals should be ready not to be Knights nor under the favour of others is there any ancient president to warrant it but to finde or to enter the field with the Armes of a Knight or provide some able person to serve in their stead unlesse they were under 21 yeeres of age and so not grown up to full strength of body nor their lands in their own possession but in custody of their Lords or guardians Neverthelesse of such as were grown to full age yet were maimed impotent or of meane estate and tenants by service of a Knight it was had into a way of moderation and ordered that such should pay a reasonable fine for respit of such service nor further as concerning their persons were they bound But as touthing such that were under present onely and not perpetuall disabilities of body upon them incumbent as often as occasion called they served by their deputies or servants all which was grounded not onely upon the law of Henry the second but also upon common right of tenure The armes that these men were to finde are said to be those belonging to a Knight which were partly for defence and partly for offence of the first sort were the Shield the Helmet the Hauberk or Brestplate or coate of maile Of the second sort were the Sword and Lance And unto all a horse must be provided These Armes especially the defensive haue been formerly under alteration for the Brestplate could not be worne with the coate of maile and therefore must be used as occasion was provided of either and for this cause the service of a Knight is called by severall names sometimes from the horse sometimes from the Lance sometimes from the Helmet and not seldome from the coat of maile The power of immediate command or calling forth the Knights to their service in its own nature was but ministeriall and subservient to that power that ordered warre to be leavied and therefore as in the first-Saxon government under their Princes in Germany so after under their Kings Tacitur warre was never resolved upon but if it were defensive it was by the counsell of Lords if offensive by the generall vote of the grand Councell of the Kingdome so by vertue of such order either from the Councell of Lords or grand Councell the Knights were called forth to warre and others as the case required summoned to a rendezvouz and this instumentall power regularly rested in the Lords to whom such service was due and the Lords were summoned by the Lord Paramont as chiefe of the fee of which their tenants were holden and not as King or chiefe Captaine in the field for they were not raised by Proclamation but by summons issued forth to the Sheriffe with distresse and this onely against such as were within his own fee and held of the Crown The King therefore might have many Knights at his command but the Lords more and if those Lords failed in their due correspondency with the King all those of the inferiour orbe were carried away after them so the King is left to shift for himselfe as well as he can and this might be occasioned not onely from their tenures by which they stood obliged to the inferiour Lords but probably much more by their popularity which was more prevalent by how much Kings looked upon the Commons at a further distance in those daies then in after times when the Commons interposed intentively in the publique government And thus the Horsemen of England becomming lesse constant in adhearing to their Soveraigne in the field occasioned Kings to betake themselves to their foot and to forme the strength of their battels wholly in them and themselves on foot to engage with them One point of liberty these Souldiers by tenure had which made their service not altogether servile and that was that their service in the field was neither indefinite nor infinite but circumscribed by place time and end The time of their service for the continuance of it was for a set time if it were at their own charges and although some had a shorter time yet the generall sort were restrained to forty daies For the courage of those times consisted not in wearying and wasting the Souldier in the field by delayes and long worke in wheeling about and retiring but in playing their prizes like two combitants of resolution to get victory by valour or to die If upon extraordinary occasions the warre continued longer then the tenant served upon the pay of the common purse The end of the service of the Tenant viz. their Lords defence in the defence of the Kingdom stinted their work within certain bounds of place beyond which they were not to be drawn unlesse of their own accord and these were the borders of the Dominion of the Crown of England which in those daies extended into Scotland on the North and into a great part of France on the South And therefore the Earle Marshall of England being by Edw. 1. commanded by vertue of his tenure to attend in person upon the Standart under his Lieutenant that then was to be sent into Flanders which was no part of the Dominion of England refused and notwithstanding the Kings threats to hang him yet he persisted saying he would neither goe nor hang. Not onely because the tenants by Knight service are bound to the defence of their Lords persons and not of their Lieutenants but principally because they are to serve for the safety and defence of the Kingdom and therefore ought not to be drawn into forraine Countries Nor did the Earle marshall onely this Walsing fo 69. 71. but many others also both Knights and Knights fellows having twenty pounds per annum for all these with their armes were summoned to serve under the Kings pay in Flanders I say multitudes of them refused to serve and afterwards joyned with the rest of the Commons in a Petition to the
King and complained of that summons as of a common grievance be cause that neither they nor their ancestors were bound to serve the King in that Countrey and they obtained the Kings discharge under his broad Seale accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmaine Stat. Mortm 7 Edw. 1. which was made within the compasse of these times by which it was provided that in case Lands be aliened contrary to that Statute and the immediate Lords doe not seise the same the King shall seise them and dispose them for the defence of the Kinodome viz. upon such services reserved as shall suite therewith as if all the service of a Knight must conduce thereto and that he is no further bound to any service of his Lord then will consist with the safety of the Kingdome This was the doctrine that the sad experience of the later government of Kings in these times had taught the Knighthood of England to hold for the future ages Stat. de Militibus No tenant in ancient demesnes or in Burgage shall be distraimed for the service of a Knight Clerks and tenants in Socage of other Manors then of the King shall be used as they have been formerly Tenants in ancient Demesne and tenants in Burgage are absolutely acquitted from forraine service the one because they are in nature of the Kings husbandmen and served him and his family with victuall the other because by their tenure they were bound to the defence of their burrough which in account is a limbe or member of the Kingdome and so in nature of a Castle guard Now as touching Clerks and tenants in Socage holding of a subject they are left to the order of ancient use appearing upon record As concerning the Clergy its evident by what hath been formerly noted that though they were importunate to be discharged of the service military in regard that their profession was for peace and not for blood yet could never obtaine their desire for though their persons might challenge exemption from that worke yet their Lands were bound to finde armes by their deputies for otherwise it had been unreasonable that so great a part of the Kingdome as the Clergy then had should sit still and looke on whiles by the law of nature every one is engaged in his own defence Nor yet did the profession of these men to be men for peace hold alwaies uniforme some kind of warres then were holden sacred and wherein they not onely adventured their estates but even their own persons and these not onely in defensive way but by way of invasion and many times where no need was for them to appeare Tenants in Socage also in regard of their service might plead exemption from the warres For if not the plough must stand still and the land thereby become poore and lean Neverthelesse a generall service of defence of the Kingdome is imposed upon all and husbandmen must be souldiers when the debate is who shall have the Land in such cases therefore they are evocati ad arma to maintaine and defend the Kingdome but not compelable to forraine service as the Knights were whose service consisted much in defence of their Lords person in reference to the defence of the Kingdome and many times policy of warre drew the Lords into Armes abroad to keepe the enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Footmen in their Armies Concil Brit. 406. but the better and more wealthy sort of them found armes of a Knight as formerly hath been observed yet alwaies under the pay of the common purse and if called out of the Kingdome they were meere voluntiers for they were not called out by distresse as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law neverthelesse remaining still intire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword for though Kings pretended danger to the publique often times to raise the people yet the people would give credit as they pleased or if the Kings title were in question or the peoples liberty yet every man tooke liberty to side with that party that liked him best nor did the Kings proclamation sway much this or that way It s true that presidents of those times cry up the Kings power of arraying all ships and men without respect unlesse of age or corporall disability but it will appeare that no such array was but in time of no lesse known danger from abroad to the Kingdome then imminent and therefore might be wrought more from the generall feare of the enemy then from the Kings command and yet those times were alwaies armed in neighbouring Nations and Kings might have pretended continuall cause of arraying Secondly it will no lesse clearly appeare that Kings used no such course but in case of generall danger to the whole Kingdome either from forraine invasion as in the times of King John or from intestine broiles 21 E. 1. rot 81. as in the times of Henry the third and the two Edwards successively and if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that generall arrayes were not levied by distresse till the time of Edward the first 23 E. 1. Memb. 5. and then onely for the rendezvouz at the next Sea coast and for defence against forraine invasion in which case all subjects of the Kingdome are concerned by generall service otherwise it can come unto no other account then that title prerogative and therein be charactered as a tricke above the ordinary straine Fourthly those times brought forth no generall array of all persons between the ages of sixteen yeeres and sixty that was made by distresse in any case of civill warre but onely by Sheriffs Summons and in case of disobedience by summons to appeare before the King and his Councell which sheweth that by the common law they were not compelable or punishable Lastly though these arraies of men were sometimes at the charge of the King and sometimes at the subjects own charge yet that last was out of the rode way of the Subjects liberty as the subsequent times doe fully manifest And the like may be said of arraies of ships which however under command of Kings for publique service were neverthelesse rigged and payed out of the publique charge The summe of all will be that in cases of defence from forraine invasion Kings had power of array according to the order of Law if they exceeded that rule it may be more rightly said they did what they would then what they ought
or 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
unlesse as their ancesters with weapons in their hands nor worthy of the presence of a King under other notion then as a Generall in the field and themselves as Commanders that are never a la mode but when all in Iron and Steele I say to make a Law that must suddenly binde men from riding or being armed when no man thought himselfe safe otherwise was in effect to expose their bare necks to the next turne of the Sword of a King that they did not overmuch trust and the lesse in regard he trusted not them I doe not wonder therefore if the Parliament liked not the worke but left it to the King to provide for the keeping off breaches of the peace and promised there assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the first yet it was not to all intents nor did it continue for besides the Statute of Torniments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probabilty was made after that law last before-mentioned the Statute at VVinton made after this Law nigh six yeeres space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said act And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chiefe moderatorship of warre and peace within the Realm of England resteth hitherto upon the Parliament next under God and in the King no otherwise then in order to the publique the rule whereof can be determined by no other Judge then that which can be intended to have no other respect then the publique good and which is the abridgement of the large volume of the Kingdom A summary conclusion ANd thus have I brought the shape of English government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish tempests the rocks of Norman invasion and the Quicksands of Arbitrary government under Popes and Kings to the Haven much defaced it is I confesse by the rage of time and yet retained the originall likenesse in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over free men Then by flattering of the free men into their designes hovered above them all but not being able to maintaine their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious then others and they againe more populer then them seeke severall interests And thus Kings aided by their party to a Supremacy which they were never borne to and it by them into a preheminence above their Peeres which neither law nor custome ever gave them are of Moderators in the Councell of Lords become moderators of those Councels and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the free men by extorsion and opression as Lords over tenants yet could they never prevaile over them as free born subjects to gaine their consent to give their right or the law up to the Kings beck but still that remained arbiter both of King and people and the Parliament Supreame expounder and Judge both of it and them Other argument hereof there will be little need Bract. lib. 2. c. p. 16. besides what hath formerly appeared then what we finde in Bracton who wrote in the time of Henry the third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earles and Barons Earles according to their name Comites are the Kings associates and he that hath an associate hath a master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unlesse they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the State of an English King in Henry the thirds time I shall adde hereto a concurrent testimony of a Lawyer also in Edward the first time Although saith he the King ought to have no equall in the Land Miror Just p 9. yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and party the King by right ought to have companions to heare and determine in Parliament all VVrits and plaints of wrongs done by the King the Queen or their childrsn and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it selfe unto which the Royall assent was added Edw. 2. and the same sealed with an Oath in the solemne stipulation made by Kings at their Coronation with the people then present in the name of the whole body the summe whereof is wont to be propounded to the King in this manner Remonstr Parliament novem l. 2. An. 1642. though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customes to them granted by the ancient Kings of England your righteous and godly predecessours and especially to the Clergie and people by the glorious King St. Edward your predecessour The Kings answer I doe them grant and promise 2. Will you keep to God and the Church and the Clergie and the people peace and concord sincerely according to your power The Kings answer I will doe it 3. Doe you grant to hold and keep the Laws and rightfull Customes which the Comonalty of your Realm shall have chosen and to maintaine and inforce them to the honour of God after your power The Kings Answer I this doe grant and promise In few words the King promised to keep the lawes already made the peace of his Kingdome and the Laws to be agreed upon by the commonalty the same in subsistance with that of Henry the first VVilliam the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chaine of Gold a serious memoriall of the Kings duty as he is a man and a glorious ornament to him as a King If then the King be under the law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peeres Hitherto certainly an English King is but Primus inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to worke the people to
Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the sitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercians and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could fit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates verò sua nomina subscripserunt Concil Brit. Pag. 350. And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing Concil Brit. Pag. 480. by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament Concil Britt Pag. 490. according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus Pag. 534. of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo Pag. 621. And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concernning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them also For Kings were mistaken in the Lords who meaned nothing lesse them to serve them with the peoples liberties together with their owne which they saw wrapped up in the grosse Thirdly by this meanes the Councils of the King and Lords grew potent not onely for advise in particular occasions but in matters of judicature and declaring of Law ordering of processe in Courts of Plees which in the first framing were the workes of Wise and Learned men but being once setled become part of the liberties of every Free-man And it is not to be doubted but these Councills of Lords did outreach into things two great for them to mannage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of the legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into severall Categories for the more cleere satisfaction to the Reader with lesse tediousnesse First it cannot be denied but the Councill of Lords gave advise to Kings in cases of particular immergency nor is it incongruous to the course of government even to this day nor meere that the Parliament
should be troubled with every such occasion and therefore the giving of advise to William the Conqueror what course he should take to settle the Lawes of England according to the instances in Councills holden An 1060. And 1070. And to gaine favour of the great men according to that in An 1106. and in the manner of endowment of the Abby of Battell as in pag 25. of the Opponents discourse and what to do upon the reading of the Popes Letter according to that in An 1114. And whether the Popes Legate should be admitted as in pag. 18. And how King Steven and Henry shall come to agreement as An 1153. And how to execute Lawes by Judges and Justices Itinerant as An 1176. And touching the manner of ingageing for a voyage by Croisado to Jerusalem An 1189. And to give answer to Embassadors of a forraine Prince pag. 25. And how King John shall conclude peace with the Pope An 1213. Where neverthelesse Math. Paris saith Pag. 23. was Turba multa nimis I say all these might well be done by a Councell of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appeare but that the Commons might be present in every one or many of them all Secondly as touching judicature the Lords had much power therein even in the Saxon times haveing better opportunites for Knowledge and Learning especially joyned with the Clergy then the Commons in those times of deep darknesse wherein even the Clergy wanted not their share as in the first part of the discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of judicature is inferiour to the regard of the Parliament and therefore the Plea between the Arch-Bishop and Aethelstan concerning Land instanced An 1070. And betweene Lanfranke and Odo An 1071. and betweene the King and Anselme pag 15 16. and the determining of Treason of John afterwards King against his Lord and King Richard pag 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appeare and therefore can these forme no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A third worke whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because hee findeth many things by them concluded touching the solemnization and the settling of the succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the election or Solemnization of such election a proper worke of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus page 16. will faile or the Opponents principles who will have no Parliament without a King The like may also be sayde of the instance concerning King Steven page 18. Much lesse can the solemnization of the election by Coronation be a proper worke for the Parliament Neverthelesse the Opponent doth well know that both the election of a King and the solemnization of such election by Coronation are Spiritlesse motions without the presence of the people and therefore though his instance page 17. concerning the election of Henry the First by the Bishops and Princes may seeme to be restrictive as to them yet it is not such in fact if Matthew Paris may be beleeved Mr. Seldens Title of Honor. who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A fourth sort of Instances concerneth matters Ecclesiasticall and making of Canons and hereof enough hath been already sayd that such worke was absolutely challenged by the Church-motes as their proper worke and therefore the Instance page 16 17. of the Councill in Henry the firsts time and the Canons made by the Bishops there and that other called by Theobald Arch-Bishop of Canterbury and instanced by the Opponent page 19. I say both these doe faile in the conclusion propounded Fifthly As touching the most proper worke of Parliaments which is the making of Lawes concerning the liberties and benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to his proposall for as touching those two instances in his thirteenth page Anno 1060. they concerne not the making of Lawes but the reviving of such as had been difused formerly which might well enough be done by private Councell But as to that in his fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincolne although it be true that wee finde not the particular titles of Knights Citizens and Burgesses yet besides the Councill of Arch-Bishops Bishops Abbats and Princes we finde the Common Councill for so the words are Communi Concilio Concilio Archiepiscopus Episcopus Abatus omnium Principum although the Opponent would seeme to wave these words Et Concilio but putting them in a small Character and the rest in a voluminous Letter that the Readers eyes might be filled with them and overlook the other Secondly as to the instance of the Councill at Clarindon in his nineteenth page which he citeth out of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the severall rankes of Great Men and those in blacke Letters of a greater size and saith That not one Commoner appeares yet Master Seldens Hoveden in that very place Tit. Honor Pag. 703. so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Lawes made by Richard the First in his twenty fourth page and hee setteth downe the severall ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Glosse of his owne that they were Barons that were made Knights when as formerly Barons were mentioned in the generall and therefore how proper this Glosse is let others judge especially seeing that not onely Milites and Milites Gregorij but even Ministri were present in such conventions even in the Saxon times And Master Selden in the former knowne place mentioneth an Observation that Tit. Honor Pag. 703. Vniversi personae qui de Rege tenent in Capite sicut ceteri Barones debent interesse judicijs curiae Domini Regis cum Baronibus Fourthly He citeth in his twenty fifth page