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
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
parts of the County and this was anciently Sheriffs Torne and now is called the Sheriffs Torne which simply considered is but a Hundred Court Miror cap. 1. Sec. 16. or the Sheriffs Torne to keep the Hundred Court It was ordered to be kept twice every yeere viz. at the Lady day and Michaelmas Ll. Edgar cap. 5 Ll. Edw. cap. 35 or soon after unto this Court all the Freeholders of the Hundred repaired and there they the Bishop and Sheriffe executed the same power and worke for kind that they did in the County Court Ll. Canut p. 2. cap. 17. In this Court all the suits in the Hundred court depending had their determination and others had their commencement and proceedings as well the pleas of the Crown as others Some have conceived it to be a County court or superiour thereto but there being no ground thereof I conceive it to be no other then a visitation of the County by parcels or in circuit CHAP. XXV Of the Division of the County into Hundreds and the Officers and Court thereto belonging COunties were too great to meet upon every occasion and every occasion too mean to put the whole County to that charge and trouble and this induced subdivisions the first whereof is that of the Hundred now and also anciently so called but as ancient if not more is the name Pagus for the Historian tels us that the Germans in the executing of their Lawes Tacitus a hundred of the free men joyned with the chiefe Lord per pagos vicosque and in raising of forces one hundred were selected ex singulis pagis which first were called Centenarii or Hundreders from their number but used for a title of honour like the Triarii And as a second hereunto I shall adde that testimony of the Councell at Berkhamsted which speaking of the reduction of suits from the Kings Court ad pagi vel loci praepositum in other places it s rendred to the governours of the Hundred or Burrough And at this day in Germany their Countrey is divided into circuits called centen or canton and centengriecht and the Hundredere they call Centgraven or Hundred chiefes Cluer lib. 1. cap. 13. whether for government in time of peace or for command in time of warre the later whereof the word Wapentake doth not a little favour Amongst these one was per eminentiam called the Centgrave or Lord of the Hundred and thereunto elected by the free men of that Hundred and unto whom they granted a stipend in the nature of a rent Malmesb. Reg. gest p 54. called Hundredsettena together with the government of the same The division of the County in this manner was done by the free men of the County who are the sole Judges thereof if Polydores testimony may be admitted and it may seem most likely that they ruled their division at the first according to the multitude of the inhabitants which did occasion the great inequality of the Hundreds at this day The government of the Hundred rested at the first upon the Lord and the Hundredars but afterwards by Alfred they were found inconvenient Ll. Alured cap. 4. because of the multitude and reduced to the Lord or his Bailiffe and twelve of the Hundred and these twelve were to be sworn neither to condemne the innocent nor acquit the nocent This was the Hundred court which by the Law was to be holden once every moneth and it was a mixt Court of common pleas and Crown pleas Ll. Edw. 35 Ll. Aetheldr 1. Ll. Aethelst 20 for the Saxon Laws order that in it there should be done justice to thieves and the triall in divers cases in that Court is by ordeale Their common plees were cases of a middle nature as well concerning Ecclesiasticall persons and things as secular Ll. Edw. cap. 32 for the greater matters were by Commission or the Kings Writ removed as I formerly observed Ll. Aetheldr cap. 1. Lindenbrog Ll. Allm. Saxon. all Freeholders were bound to present themselves hereat And no sooner did the defendant appeare but he answered the matter charged against him and judgement passed before the Court adjourned except in cases where immediate proofe was not to be had albeit it was holden unreasonable in those daies to hold so hasty processe and therefore the Archb. of Yorke preferres the Ecclesiasticall or Canonicall way before this Lastly in their meeting Concil Brit. p. 273. Tacitus Glossar 155. as well at the Hundred as County Court they retained their ancient way of comming armed CHAP. XXVI Of the Division of the Hundreds into Decennaries THis was the last subdivision of the County and that rested upon the persons and it was either not at all or not so observable as to be worthy of the Roman story and therefore may rather be thought an extract from Moses law introduced by Alfred or his direction I say this rested on the persons and not upon the place for though the Centeners were comprehended with certaine bounds yet the Decenners were not limited but onely within the limits of the Hundred And of these also it appeareth to me there were divers sorts for such matters of controversie that did arise amongst the Decenners if of greater moment were referred to the chiefer Justices which were appointed super decem decanes which I conceive were ten chiefe pledges and these might beare the names of the Centeners although they be not the Centgraven and the rather I incline thereto because in all probability there must needs be above one hundred Freeholders in Hundredo and all free men were Decenners Ll. Canut c. 19. that is ranked into severall tens each one being pledge for others good abearing and in case of default to answer it before the judge and in case of default of appearance his nine pledges should have one and thirty daies to bring the delinquent forth to justice If this failed then the chiefe of those Decenners by the votes of that and the neighbour Decennaries was to purge himselfe and his fellow pledges both of the guilt of the fact and of being parties to the flight of the delinquent And if they could not this do then were they by their own oathes to acquit themselves and to bind themselves to bring the delinquent to justice as soon as they could in the mean time to pay the dammage out of the estate of the delinquent and if that were not sufficient then out of their own estate but if the delinquents estate was sufficient the surplussage thereof remained with the pledges And lastly the Master of the family was a pledge for his whole family Ll. Edw. cap. 15 Ll. Canut c. 28 This was the Law of Decenners and may seem to be somewhat a rigorous law not onely in case of delinquency but also for their abode for none of them might depart from their dwelling without consent of his fellow pledges Ll. Alured cap. 33. Ll. Canut p. 2. cap.
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
the Kings high way or open street but by the Kings Officer and speciall Writ because distresse is incident to service and that is due as from the fee and therefore by common right the same must be recovered from the fee and such as owe service in the same but the high way or open street are more properly a franchise belonging to the King although the soile happly may be the Lords and therefore it was an old law that they should be under the Kings safegard Ll. Inae Sit pax publica per communes vias and no violence must be there tolerated but by the Kings especiall Writ which presupposeth the especiall notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distresse for it must not be excessive and also in keeping thereof for if the owner will he may replevy the same according to the ancient course Marlb cap 21. Glanvil lib. 12 cap. 12. and the Sheriffe must grant replevy if it be demanded although formerly no replevy was without speciall Writ and yet they also not alwaies readily obeyed For the times were such as the Lords were bold with the Kings courts and Ministers and refused the order of the law now in such cases wherein the matter concerned contempt of the Kings authority a fine was set upon the offender but in case it concerned onely a tort done to the party he was amerced the one is called redemption because the penalty otherwise must lie upon the person Miror cap. 5. Sec. 3. if it be not redeemed by pecuniary fine the other is called amercement which is originally a satisfaction unto the party wronged by recompence out of the personall estate of the delinquent Distric Scac. Artic. mag cart cap. 12. Thirdly as touching the matter of the distresse it must not be of Plough beasts or sheep unlesse in case of dammage fesant if other distresse may be had for the Law had a care of such Cattell as were most of publique concernment and which was the maine stocke of subsistence so farre as justice would allow and therefore the unjust taking of any mans Cattaile by any person whatsoever is liable to the same penalties that unjust distresses are West 1. cap. 16. Fourthly concerning the using of the distresse it must not be sold no not in the Kings case till fifteen daies be past after it is taken Marlbr cap. 4. Distric Scac. nor must it be carried out of the County but it must be so impounded as the owner may come to feed it and it must be discharged if the owner give security of satisfaction before the returne of the Writ Artic. sup cart cap. 12. Fifthly the intent of the distresses must be that which is just and therefore not for other suit then by the feofment is due or else by prescription and in case many are joyntly seised Marlbr cap. 9. the suit shall be by one and the rest shall contribute cap. 22. Nor must any man be compelled to shew his title to his Land by distresse cap. 13. The Common pleas shall be holden in one certaine place The Office of Judge of the Common-pleas was in my opinion distinct and severall from that of the Crown pleas nor though one and the same man might execute both authorities doth it therefore follow that it was by one and the same power as if being Judge he had thereby power in all matters of the Common pleas and also of the Crown for though it be true that Bracton saith the King hath one proper court wherein are the chiefest Judges Capitales Just nostri which both by his own testimony and Britons also did heare and determine causes of all sorts yet is it true also that it was by appeale or Writ of errour as in case of false judgement and that the King had plures curias Marblr cap. 20. which doubtlesse had their proper worke and in the time of Henry the second its cleare that six were especially assigned for the Common pleas throughout the whole Realme and yet by another especiall Commission or Letters patents the same men might also have power to determine matters of the Crown as at this day in their severall circuits This law therefore doth not as I conceive worke any alteration but onely in this that whereas formerly the Judges of Common pleas attended on the Kings Court continually as all other Judges did and whither the King removed they did the like which was a great uncertainty and grievance unto the Commons Henceforth they are fixed to a certaine place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely cap. 14. and by the Iustices itinerant sent by the King or his chiefe Iustices The law was so declared in Henry the seconds time and was questionlesse put in practise so farre forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the Kings Court but the Justices must come down to them and yet in case of difficulty the bench where the Common pleas are holden must determine the matter and where the time in the Iter in one County is too scant the remanets shall be adjourned over to be tried elsewhere in that circuit which sheweth that the Judges itinerant had their time proportioned out to every County These trials also were so favoured Westm cap. 51. as in the then holy times of Advent and Septuagesima or Lent they might be tried which although was gained by prayer made by the King to the Bishops as the words of that law are concluded yet it shewes that the Parliament had so much light as to hold the time not inherently holy but meerely sequestred by the will of the Clergy The Plantiffs also in Mortdancester may be divers if there be divers heires of one ancester by one title Stat. Gloc. ca. 6. And if there be joyntenants and the Writ be against but one and the same pleaded Conjanct feofat An. 34. E. 1. Stat. Gloc ca. 1 the Writ shall abate but if joyntenancy be pleaded and the plea be false the defendant shall be fined and imprisoned And if in the action the verdict be for the plaintiffe he shall recover dammages cap. 15. Darraine presentment shall be taken onely in the common Banke Trials in the common bank or other Courts at VVestminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally availeable This might be one cause why the Titles of Churches were still retained at the common Bank when as all other rode circuit For that Churches affaires in those times were of high regard Speed of triall also was not little regarded herein for Justices by Nisi prius properly were but for inquiry till the Statute at Westm the second made them of Oyer
and terminer in the cases of Quare impedit and Darraine presentment West 2. cap. 30. and gave them power to give judgement And thus the Commons gained still in point of conveniency cap. 16. Free men shall be amerced according to the degree of the fault saving to them their free hold and to Merchants their maine stocke and to villaines their Waynage and Clergy men shall be amerced according to their Lay fee. Barrons shall be amerced by their Peeres others by the vicinage In this regard is to be had first of the persons that are to be amerced then of the parties by whom and lastly of the nature and quantity of amercements The persons amerced are ranked into foure Classes Barons Clergy Free men and villaines But in regard of the parties by whom they are to be amerced they are but two Barons and Freemen for the Clergy villaines and free men are to be amerced by the free men of the neighbourhood Marlb cap. 19. In what Courts these amercements shall be the Stat. Marlbr tels us not before the Escheator nor other that make enquiry by Commission or Writ nor before the Justices of Assize or Oyer and terminer but only before the chiefe Justices or Justices itinerant The Statute of VVestminster addes a fifth Classes of Cities and Towns by expresse words Westm 1. cap. â— which seems not so necessary unlesse in pillaging and oppressing times for they were taken to be within the Statute of Magna carta Miror cap. 5. sect 4. though not therein named The rule of the quantity of amercements is now set down in generall and left to the discretion of the Peeres or Vicinage which formerly by the Saxons were specially set down in the law The rule in generall is with a ne plus ultra viz. not further or more then that the party amerced may spare and yet hold on in the maintenance of his course according to his degree And it must be also according to the quantity of the offence for the greatest amercements must not be ranked with the least offences so as in every degree the maine sustainance of the party is saved yea the villaines how ever meane they be they must have their maintenance And this sheweth that villaines had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unlesse they were the Kings villains who it seemeth were meerely under the Kings mercy as being both their Lord and King against whom they could hold nothing as properly their own and therefore in all other cases even then the villaines were borne under a kinde of liberty as in the Saxon times formerly hath been declared which the Law protected against their owne Lords No man shall be compelled to make repaire cap. 17 18. or maintaine any bridges banks or causies other or otherwise then they were wont to be made repaired or maintained in the time of Henry the second The limitation to the times of Henry the second sheweth that his justice was such as maintained the common rights of men but in the times of Richard the first Miror cap. 5. sect 2. and more especially of King John those rivers waters and fishings formerly used in common were incroached upon inclosed and appropriated to particular mens uses which occasioned many bridges banks and causies to be made and repaired to the great charge of private men all which are discharged by this Law cap. 19. No Sheriff Constable Coroner or other Bayliff shall hold any pleas of the Crown Escheators are also expressed in the old bookes of Magna carta and the abridgements however it seemeth that it s within the intent of the law which was made to avoyd the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of estates of men would inquire of matters concerning the lives of men and Sheriffs that had power of trials in cases of theft as hath been already shewen Ll. Hen. 1. c 8. Glanv lib. 1. cap. 2. abased the same for their own benefit because in such cases they had the forfeitures This law therefore takes away such occasions viz. from the Sheriffs and Corroners and Bayliffs or Justices other then by expresse commission thereto assigned all power to hold pleas of the Crown by triall leaving unto them neverthelesse power of inquiry of which anciently they had the right cap. 20. If the Kings tenant dieth supposed in arreare an inventory shall be made of his stocke by honest men but it shall not be removed till accounts be cleared and the overplus shall go to the Executors saving to the wife and children their reasonable part The first clause hereof was a law in Henry the firsts time and a customary law in Henry the seconds time Glanv lib. 7. cap. 5. being a remedy against an old Norman riot of the Lords seisure of the whole personall estate of the party deceased under colour of a law The second part concerning the overplus hath this additionall subjoyned in the Charter of King John If any free man die intestate his Chattels shall be divided by his parents and his friends in the presence of the Church saving to every one their proper debts and thus since the conquest the Church men incroached by degrees unto a great power in matters testamentary I say by degrees for as yet by this law it appeareth that they were but overseers or eye-witnesses for as yet right of ordering or disposing they had none as may appeare in that case of a bastard dying without issue and intestate the Lord shall have his personall estate Glanvil lib. 7. cap. 16. and in all cases the executor had then nothing but bare assets and the overplus was assigned between the wife and children according to their reasonable part or if the party died intestate the next friends did administer paying the debts and making dividend of the overplus into the reasonable parts according to the ancient Saxon custome still continued nor doth the testimony cited out of Bracton prove any other then that the auncestor hath free power to order his estate as he pleaseth Coke instit 2. pag. 33. and that the children shall have no more then is left unto them by their auncester either in his will or in case of dying intestate by the custome or law which is and ever was the rationabilis pars No purveyance for any Castle out of the same Town where the Castle is but present satisfaction must be made cap. 21. and if in the same Town satisfaction must be made within forty daies Purveyance was ancient provision for the necessities of the publique and so farre was commendable seeing it s not the common case of all men to regard the publique above their own private interest therefore the publique must provide for it selfe by their meanes in whom the publique is most concerned and this
of these persons the one being perpetuall the other temporary therefore is there also by these laws a difference in the disposall of their estates for the tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the naturall affection going along with the blood and this so continued in custome untill these times for though the Miror of Justices saith that Henry the first brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the first speaking of these kind of persons saith Bract. lib. 5. cap. 20. Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their parents and friends Lib. 1. cap. 10 But let the time of the entrance of this law be never so uncertaine it s now a declared law that the King in such cases is the common curator or tutor of all such persons as he is a chiefe Justice rendring to every one his right The King shall have the wrecks of the Sea Prerog Reg. cap. 11. West 1. cap. 4. What shall be called a wreck the Statute at Westm 1. declareth viz. where the ship so perisheth that nothing therein escapeth alive and these are rather in their originall committed to the King as a curator then given him as a proprietor although that custome hath since setled a kind of right which may perhaps be accounted rather a title by estoppell For the fundamentall ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appeare Marlb cap. 17. The heire in Socage tenure shall have an action of waste and an accompt against his guardian for the profits of his lands and mariage The heire in Socage being under age shall also be under custody of such guardian of the next kindred Bracton lib. 2. cap. 37. who cannot challenge right of inheritance in such lands so holden as if the Lands descended from the father side the mother or next of the kindred of the mothers side shall have the custody and so if the Lands descend from the mother the father or next kindred of the fathers side shall have the custody And this custody bringeth with it an authority or power onely and no right as in case of the heire in Knightservice and therefore cannot be granted over as the wardship in Knightservice might but the guardian in Socage remaineth accomptant to the heire for all profits both of land and marriage The full age of tenant in Socage is such age wherein he is able to doe that service which is 14 yeeres for at such age he may b able by common repute to ayd in tillage of the ground which is his proper service But the sonne of a Burgesse hath no set time of full age but at such time as he can tell money and measure cloath and such worke as concerne that calling Merton cap. 1. Widdows deforced of their Dower of Quarentine shall by action recover damages till they recover their Dower cap. 2. They shall also have power to divise their crop arising from her Dower Bract. lib. 2. cap. 40. It was used that the heire should have the crop with the Land but this Statute altered that former usage and yet saved the Lords liberty to distraine if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy West 2. cap. 24. and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilfull in the Law It was none of the meanest liberties of the freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no lesse a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wils and not of the Laws of the Kingdome M. Paris addit Artic. 44. as the complaints of the Clergy in the times of Henry the third doth witnesse Neverthelesse because many mens cases befell not directly within the Letter of any Law for remedy and yet were very burdensome for want of remedy it s provided by this Law that in such emergent cases that doe befall within the inconvenience shall likewise be comprehended within the remedy of that law Aide to make the sonne of the Lord a Knight West 1. c. 36. and to marry his eldest daughter shall be assessed after the rate of twenty shillings for a Knights fee and twenty shillings for twenty pounds in yeerely value of Soccage tenure The uncertainties of ayds are by this Law reduced and setled as touching the summe and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular summe hereby but also the age of the sonne when he was to be made a Knight viz. at the age of fifteen yeeres too soon for him to performe Knightservice but not too soone for the Lord to get his money And the daughter likewise was allowed to be fit for marriage at seven yeeres of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gaine that made the Law and it was not amisse to have the ayd beforehand though the marriage succeeded not for many yeeres after and if the Lord died in the interim the executors having assets paied it or otherwise his heire CHAP. LXVIII Of Courts and their proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of latter birth albeit even they also have been of ancient constitution and divers of them itinerant also and some of them setled in one place The worke of the Justices itinerant was universall comprehending both matters of the Crown and common-Common-pleas That of oyer and terminer is onely of Crown pleas originally commenced and inquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large worke that is to deliver the Gaols of all criminall offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognisance of Common pleas onely and for the most part are but fo inquiry All which saving the Justices itinerant in ancient use were instituted
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
CHAP. LXXI Of the Peace WArre and peace are two births by severall venters and may like the day and night succeed but can never inherit each to other and for that cause they may claime to belong to one father and that one and the same power should act in both and yet it s no good maxime that he that is the chiefe Commander in warre ought to be the chiefe in the order of peace For it naturally befals that warre especially that which we call civill warre like some diseases in the body does rather breed ill humours then consume them and these must be purged by dieting the State and constant course of justice unto which the rugged waves of warre have little or no affinity if not enmity Neverthelesse the wisdome of our ancestors thought it most meet to keep their Kings in worke as well in time of peace as of war and therefore as they anciently referred the principall care thereof to the Lords who together with certaine select persons in every County did administer justice in severall iters or circuits so when Kings had once gotten the name of being chief in civill affaires as they had it in martiall they soon left the Lords behind them who also were willing enough with their own ease and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or commissioners thereto deputed And thus that peace which formerly passed under the titles of Pax Domini pax vice comitis it is pax Regni became by eminency swallowed up in that which was called the Kings peace and the Justices called the Kings Justices and himself flattered into that title of Fountaine of Justice which belongeth onely to him that is The Most High or Chiefe Law-giver The manner how this honourable care of the safety and peace of the Kingdome was imployed may be referred to a double consideration the one in execution of justice upon delinquents the other in preventing occasions of offence or delinquency by meanes whereof the publique peace might be endangered The first was acted diversly according to the present sence of affaires for what was at first done by the Princes in their circuits Tacitus with one hundred of the Commons called Comites and that done per pagos vicesque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chiefe Magistrates of Towns in their courts and Sheriffs in their Tornes as Judices stati for the ease of the people in matters of lesse moment I say I conceive it was in the Torne for I suppose no emergent court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve yeeres of age at the same 52 Hen. 3. Marlb cap. 25. and for the same cause it seemeth that one certaine Torne every yeere was holden for inquiries of homicide unto which all above twelve yeere of age were to come except Barons Clergy and women or otherwise all such had been bound to attendance on every Torne Neverthelesse the worke of the Tornes continued not to heare and determine as anciently they had done For in Henry the thirds time and formerly divers men had prisons to their owne use some as Palatines Mitor cap. 2. Sec. 9. other as Lords of Franchise and others by power and usurpation and had the benefit of all fines incident and by this meanes many were fined that deserved it not Mag. cart cap. 19. and some also that deserved worse to prevent which evill Henry the third tooke away that power of holding Crown-pleas Glocest cap. 8. West 1. cap. 3. And Edward the first tooke away their power to determine escapes and left them onely the power of inquiry and to certifie at the next comming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such coole pursuit Men were still ordinarily imprisoned and so continued oftentimes till the comming of the Justices itinerant For whereas in case of bloodshed the Writ de odio gratia was a remedy the other had no remedy but by procuring a Commission of Oyer and terminer which ordinarily was a cure worse then the hurt Stat. Wint. 13 Edw. 1. As a remedy hereof Edward the first found out the new way of making Justices of peace as may appeare by the Statute at Winton which law being purposely made for the conserving of the peace providing for penalty of crimes already committed as well as for the suppressing of future ordaineth that offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soone made way to resiant And before that Statute it seemeth the King had found out the way Coke Inst 4. p. 176 if that note be true which is left revived into memory by that honourable reporter which relating to the sixth yeere of Edward the first saith that then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Hen. 1. if I mistake not the sence of that clause in his laws concerning vagabonds he ordereth that they shall be carried Iusticiae quae praeest Hen. 1. cap. 58. although the language be not so Clerkly as to speake the sence out Now though their worke as yet was but in triall and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriffe was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriffs Torne and Lords Leets of that little remainder that was left them of judicatory power in matters that were against the peace and made their inquisitory power lesse regardfull and eased the Justices itinerant of much of their work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seemes were jealous of giving the power of determining those offences into any sudden hand To summe up then the first part as touching the punishment of offences against the peace the wheele is now in the turning the Leets and Tornes begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and terminer difused by the bringing in of a new order of Justices for the peace especially appointed And the Parliament as the supreame providors left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the Kings court after that the Common pleas were setled and confined to a certain place The preserving of the peace for the future
in the Lawes cap. 2. Rights of Tythes of a Lay fee or where the tenure is in question belong to the Kings court Pleas of debts by troth-plight belong to the Kings Court. cap. 3. These were Saxon Laws and do intimate that it was the indeavour of the Clergy to get the sole cognisance of Tythes because they were originally their dues and of the debts by troth-plight because that oaths seemed to relate much to Religion whereof they held themselves the onely professors The Kings Justice shall reforme errourrs of Ecclesiasticall Courts and Crimes of Ecclesiasticall person cap. 4. Appeales shall be from Archdeacons Courts to the Bishops Courts and thence to the Archbishops courts cap. 5. and thence to the Kings court and there the sentence to be finall No man that ever was acquainted with antiquity will question that these were received Laws in the Saxons time Constit at Clarindon nor did the Clergy ever quarrell them till the Normans taught them by curtesie done to Rome to expect more from Kings then for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergy for his Crowne and could not otherwise content them parted with this Jewel of supreame power in causes Ecclesiasticall to the Roman cognisance as hath been already noted but Henry the second would none of this cheate at so easie a rate This strooke so smart a blow as though the Popedome had but newly recovered out of a paralitique Schisme yet seeing it so mainly concerned the maintenance of the tripple Crown Alexander the Pope having lately been blooded against a brave Emperour made the lesse difficulty to stickle with a valiant King who in conclusion was fain to yeeld up the bucklers and let the Pope hold what he had gotten notwithstanding against this law and all former Law and custome And thus the Popes supremacy in spirituall causes is secured both by a recovery and judgement by confession thereupon Constit at Clarindon The King shall have vacances of Churches cap. 6. and power to elect by his secret Councell The party elected shall doe homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custome not altogether against reason although not suitable to opinion of many yet we meet two alterations of the ancient custome First that the election shall be by the King and secret Councell whereas formerly the election of Bishops and Archbishops was of such publique concernment as the Parliament tooke cognisance thereof and that which was worse a Councell was hereby allowed called a secret Councell which in effect is a Councell to serve the Kings private aimes and unto this Councell power given in the ordering of the publique affaires without advice of the publique Councell of Lords which was the onely Councell of state in former times and thus the publique affaires are made to correspond with the Kings private interest which hath been the cause of much irregularity in the government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unlesse by practise in Stevens time when as there was little regard of the one or the other Nor doth it concurre with the file of story that it should be inserted within these constitutions Constit at Clarindon seeing that writers agree it was the chiefe cause of quarrell between him and Becket who refused submission without the clause and at which the King stooke with the Archbishop for the space of seven yeeres which was six yeeres after the Constitutions were consented unto and concluded upon cap. 7. No Clergy man or other may depart the Realm without the Kings licence It s a law of Nations and must be agreed on all hands that no reason of state can allow dispensations therein especially in a doubtfull government where the Supremacy is in dispute and this the wilfull Archbishop never questioned till he questioned all authority but in order to his own for but the yeere before when he went to Turonn to the generall Councell upon summons M. Paris he first obtained licence from the King before he went No sentence of excommunication or interdiction to passe against the Kings tenant or any minister of state cap. 8. without licence first had of the King or his chiefe Iustice in the Kings absence Till the Conquest no Excommunication passed without warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons Constit at Clarindon and the Clergy having gotten the upper hand in Councels made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon vid. cap. onely as well the Normans as untill these times Kings have saved their owne associates from that sudden blow and upon reason of religious observance least the King should converse with excommunicate persons ere he be aware The Laity are not to be proceeded against in Ecclesiasticall Courts cap. 9. but upon proofe by witnesses in the presence of the Bishop and where no witnesses are the Sheriffe shall try the matter by Iury in the presence of the Bishop A negative law that implieth another course was used upon light fame or suspition ex officio although the oath at that time was not borne into the world and that all this was contrary to the liberty of the Subject and law of the Land and it intimates a ground of prohibition in all such cases upon the common law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath cap. 10. or baile to stand to the judgement of the Church Upon the taking and imprisoning of the party excommunicate Constit at Clarindon the course anciently was it seemeth to give pledge to stand to order of this the Bishops were weary soon as it seemeth and therefore waved it and betooke themselves to other inventions of their own viz. to bind them by oath or baile both which were contrary to law for no oath was to be administred but by law of the kingdome nor did it belong to the Ecclesiasticall laws to order oathes or baile and therefore this law became a ground of prohibition in such cases and of the Writ de cautione admittenda cap. 11. Persons cited and making default may be interdicted and the Kings Officer shall compell him to obey If the Kings Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the processe in the Spirituall Courts was to be regulated according to Law nor did it lie in the power of such Courts to order their own way or to scatter the censure of excommunication according to their own liking This together with all those that foregoe the Archbishop upon his repentance absolutely
Ordinances or Councels or executioners or such as shall judge by such things All such as are knowingly guilty of any such matters shall ipso facto incur this sentence such as are ignorantly guilty shall incur the same censure if being admonished he amend not within fifteen daies after admonition In the same censure are comprehended all perturbers of the peace of the King and Kingdom for everlasting memory whereof we have hereunto put our Seales And then all throwing down their Tapers extinguished and smoking they said So let all that shall goe against this curse be extinct and stinke in Hell The King all the while continuing in the posture above mentioned said So God me help I will observe all these things sincerely and faithfully as I am a man as I am a Christian as I am a Knight as I am a King crowned and anoinied If we shall pare away the superstitious ceremonies and consider divine providence we may search into all Histories of all ages and we shall not finde a parallell hereunto so seriously composed solemnly pronounced with an Amen from the representative body of the whole Kingdome put in writing under seale preserved to posterity vindicated by God himselfe in the ruin of so many opposers And yet the dust of time hath almost buried this out of the thoughts of men so as few even of such as know it do seriously consider how far it may yet and even now be charged upon the account of this Nation Serious as it was it was soon forgotten nor would the King be long holden with promises some unhappy Starre strooke him in his birth he had been too hard for his promises and now having the Pope at his elbow he can dispence with his oath and bid defiance to an execration and in flat defiance of the grand Charter professeth oppression accumulates forraine Councellors and forraine guards contemnes his own people ushers in the Popes extortions upon them to fill up the measure thrives in nothing but in the match of his sonne and successour with a sister of Spaine and yet that also helps to hasten on the publque poverty and that a Parliament that brought forth a bloody issue although not by any naturall power but occasionally For the Barons mean now no longer to trust to promises strangers are banished the Realme and others of the English blood stepped into their places and Revenues But this was not all the King must confirme the grand Charter and thereto he addeth not onely his own oath but causeth the Prince his sonne to confirme the same in like manner It is likewise propounded to him that the chiefe Officers of the Kingdome may be chosen such as the Parliament shall like of And that other lawes meet for the government of the Kingdom might be established of all these the King made no bones And to make men believe that he was in good earnest he was contented to disrobe and disarme himselfe Dan. and invest the Barons both with Sword and Scepter retaining nothing but the Crown for himselfe This had been safety enough for the Kingdome but that it was a conclusion without an agreement for as it was on the Kings part made from a principle of shame and feare so it was determined in anger for after that the King had been thus drest and girt for the space of foure or five yeeres whatsoever he thought all the while it s no matter he began first to stretch his conscience and having the Popes dispensation to helpe soon makes his oath to flie asunder although his sonne had for the present more conscience But the other girt held more stoutly for the Lords had the Sword chained to their arme by the Kings own grant Liceat omnibus in regno nostro contra nos insurgere ad gravamen nostrum opem operam dare ac si nobis in nullo tenerentur Dan. An. 1258. and the Lords maintained their hold though not without some jealousies amongst themselves it s very probable had the King been a little longer breathed with patience he might have had his will upon easier termes for the Lords were not so jealous of one another as the Commons were jealous of the Lords that they meaned to rule onely for themselves But the King being now in a wood and bemired so as he must now resolve to get all or lose all and so either sacrifice his naturall desires or the remainder of his politicke power entered the field with the ayd of those Commons that chose rather to be oppressed by one King then many Lords and thus the Lords received the first blow and gave the first foile afterwards being worsted by their own divisions and jealousies they left a victory to the King that might have made him absolute if he had been moderate but pursuing revenge too farre he was distasted of his own party that looked on him as a Polyphemus that intended to devoure the enemy first that he might more freely feast upon themselves in the issue this made victory follow the King a farre off and taught the King that the end of civill warre must be attended with moderation in the Conquerour so farre as may stand with publique safety or otherwise he that is conquerour to day by Sword may be conquered to morrow by jealousie Thus many humours consumed and all parts tired after four yeeres continuall warre the State commeth to its right wits The Kings gaines in all this bloody sweat may be summed up in two heads First that he had liberty to choose his principall Officers of State by advice of the Lords and them also to displace by like Councell Secondly in that he gained though at a deere rate wisdome to observe the state of affaires and to apply himselfe according to occasion so lived Henry the third for three or four yeeres after these troubles long enough to let the world know that he was able to governe like an English King and to teach his sonne by his own late experience to be a wise governour betimes For Edward the first being trained up in the Tragedy of a civill warre wherein he was one of the chiefe actors Edw. 1. and having expiated the bloody way of his riotous youth by his holy warre as they called it now he betakes himselfe to amends making by justice in government having found by his fathers experience that a Kingdom well governed like good husbandry preserves the owner but being neglected destroyes both He came over in his third yeere in August was crowned in September summoned a Parliament in February following but adjourned it till after Easter and then it is found that the Church of late had been ill governed the Clergy men grieved by many waies the people otherwise handled then they ought to be the peace ill kept the laws lesse used and delinquents lesse punished then was meet and in the sence of these inconveniences were the laws of VVestminster the first made wherein the world
Saxon p. 68 Norman p. 133 Hundred Setena Saxon p. 68 I IDolatry punished by the Saxons p. 97 Normans p. 138 Vide Blasphemy Imprisonment Saxon p. 100 Norman p. 151 Incest punished by the Saxons p. 101 Indictment Saxon law p. 85 Infancy amongst the Saxons p. 88 After p. 198 Infangtheoff Saxon p. 74 Inheritance Saxons p. 102 Normans p. 160 After p. 196 c. Inquest Saxon p. 91 Interdict in the Saxon time p. 38 After p. 182 Intent punished by the Normans p. 151 Intestate Saxon law p. 109 Norman p. 143 Afterward 232 c. 264 c. John p. 170 Judgement vide execution Judges vide Justice Judicatory 189 c. Jury grand petit amongst the Saxons p. 91 Justice and their Courts amongst the Saxons p. 84 Chiefe Justice p. 191 Judges or Justices itinerant after the Normans p. 192 199 284 K KIngs amongst the Saxons election continuance covenant maintenance power in Church-matters p. 46 c. 56 Amongst the Normans election 113 c. Covenant 116. c. Power in Church matters p. p. 123 c. In the times of Steven Henry the second Richard the first and John Election p. 165 Power in Church matters p. 176 c. In the times of Henry the third Edward the first and Edward the second Succession p. 208 c. Power in Ecclesiasticall matters p. 225 c. 233 In Civill affaires 277 c. 317 c. Knightservice amongst the Saxons p. 76 Marriage p. 146 202 255 Acquittall p. 149 Widdows p. 256 L LAnguage endeavoured to be changed by the Normans p. 161 Lashlight amongst the Saxons p. 99 Lecturers amongst the Saxons p. 28 Leet amongst the Saxons p. 78 Legierwit amongst the Saxons p. 100 Livery and seisin amongst the Saxons p. 108 London p. 257 Lords-day maintained by the Saxons p. 98 By the Normans as plea of the Crown p. 139 Lords their councels amongst the Saxons p. 62 84 From the Conquerours time till Henry the third p. 174 Lorica what it is p. 309 Lucius p. 9 c. Luminaries amongst the Saxons p. 31 Lunacy vide fooles M MAgna carta p. 172 Renewed with the curse p. 210 Stat. c. p. 253 Cap. 35. p. 244 Cap. 37. p. 245 Mainpernours by the Saxons p. 85 87 By the Normans p. 151 Maimes punished by the Saxons p. 100 Manbota amongst the Saxons p. 99 Mannors amongst the Saxons p. 75 Normans p. 134 Manslaughter punished by the Saxons p. 99 Normans p. 140 After p. 195 Manumission p. 137 Marriage portion vide Dower Marriage vide Knightservice Marchants Magna carta p. 272 Marches amongst the Saxons p. 72 Normans p. 131 Markets amongst the Saxons p. 80 Normans p. 143 Vide Townships Marshals Court p. 285 Matrimoniall causes amongst the Saxons p. 41 Medietas linguae amongst the Saxons p. 92 Metropolitan amongst the Saxons p. 23 Micklemote amongst the Saxons p. 57 The Primacy of Canterbury setled there p. 36 Mils tithed p. 240 Militia amongst the Saxons p. 63 The Normans p. 152 During the Kings next ensuing p. 205 During Henry 3. Edward 1. Edward 2 p. 294 Mint amongst the Saxons Normans p. 137 Monastry admission p. 183 Mortdancester p. 198 261 Mortmaine p. 245 Mortuary amongst the Saxons p. 32 N NEwes scandalous p. 292 Nightwatches by the Normans p. 141 After p. 304 Nobility amongst the Saxons p. 53 From the Normans time p. 172 From King Johns time p. 221 Normans their title c. p. 113 c. Not conquest p. 155 Novell disseisin p. 199 261 O OBlations cognisance p. 235 Odio Atia p. 269 c. Officers power greater then kings p. 173 Ordeale amongst the Saxons p. 89 Ordinaries intestate p. 232 Outfangtheoff amongst the Saxons p. 74 Ostiaries amongst the Saxons p. 28 Othes p. 246 271 P PAlatine county amongst the Saxons p. 73 Parishes amongst the Saxons p. 35 Parliaments p. 120 278 Parks trespasses p. 292 Passage p. 272 Peace amongst the Saxons p. 100 The Normans p. 140 After p. 300 Penall Laws Saxons p. 96 Normans p. 138 After in the time of Henry 2. p. 193 After p. 286 Perjury punished by the Saxons p. 40 101 Peeres amongst the Saxons p. 93 Peterpence amongst the Saxons p. 32 The Normans p. 139 Pledges p. 150 Plough almes Saxons p. 32 Popes power p. 19 177 184 Oppressions of the Clergie p. 225 Prelacy in England not till Constantines time 11. came from Rome by Austin p. 21 c. Suddenly grown p. 44 Praecipe Mag. carta p. 268 Priors vide Abbats Presbyters amongst the Saxons p. 27 Presentment amongst the Saxons p. 86 Priority vide Tenure Prohibitions p. 228 233 Protectour p. 209 Provinces amongst the Saxons p. 35 Purveyance p. 244 265 c. Q QUare Clausum fregit Saxon p. 101 Quare excommunicavit p. 227 Quare non admisit ibid. Quarentine p. 256 282 Quo warranto p. 244 R RAnsome p. 94 260 Rape Norman p. 141 After p. 195 c. 288 Reasonable part 257 264 Vide Dower Redemption vide Ransome Redesseisin p. 292 Reliefe Norman p. 145 After p. 201 Religious houses vide Abbeys Replevy Norman p 142 259 Richard the first p. 169 Romans entry p. 5 The Papalty with seven degrees of their Church Officers p. 29 Seven sorts of Church maintenance p. 35 Romescot Romesfeogh vide Heardpenny Robbery punished by Saxons p. 101 By Normans p. 142 After p. 193 195 287 304 S SAbbath day Saxon law p. 98 Sacriledge Saxon law p. 41 Sanctuary p. 139 183 242 Saxons in England mingled p. 90 Seale vide Deeds p. 107 Sheriffs Saxon p. 65 Extortion p. 275 286 Symony punished by the Saxons p. 41 Sorcery vide Witchery Soulshot Saxon p 32 Socage Saxon p. 77 Steven his government p. 165 Stat. Magna carta vide Magna carta Merton cap. 1 2 6 7 p. 156 Cap. 1. p. 282 Cap. 3. p. 292 Cap. 9. p. 252 Cap. 10. p. 275 Cap. 11. p. 295 Marlbridge cap. 1 2 3. p. 259 Cap. 4. ibid. Cap. 5. p. 280 Cap. 8. p. 292 Cap. 9. p. 264 Cap. 10. p. 229 275 Cap. 15. p. 259 Cap. 16. p. 254 Cap. 17. p. 282 Cap. 19. p. 262 Cap. 20. p. 261 Cap. 21. p. 259 Cap. 22. p. 260 Cap. 25. p. 287 302 Cap. 29. p. 229 Westm 1. cap. 1 2 5. p. 231 c. Cap. 3. p. 289 302 Cap. 4. p. 281 Cap. 6. p. 263 Cap. 9. p. 289 Cap. 10. p. 286 Cap. 11. p. 270 Cap. 12. p. 289 Cap. 13. p 288 Cap. 14. p. 275 Cap. 15. p. 290 Cap. 16. p. 260 Cap. 20. p. 292 Cap. 22. p. 256 Cap. 23. p. 286 Cap. 32. p. 266 Cap. 33. p. 275 Cap. 34. p. 292 Cap. 36. p. 285 Cap. 51 p. 261 Bigami p. 247 c. Glocest cap. 1. p. 262 Cap. 5. p. 255 Cap. 6. p. 261 Cap. 8. p. 285 302 Cap. 9. p. 270 De Religiosis p. 245 Westm 2. cap. 13. p. 275 Cap. 16. p. 256 Cap. 19. p. 232 Cap. 24. p. 285 Cap. 26. p. 292 Cap. 29. p. 270 285 Cap. 30. p. 262 Cap. 33. p. 245 Cap. 34. p. 288 Winton p. 302 c. Circumspecte agatis p. 233 c. Quia emptores p. 274 De Judaismo p. 273 Quo warranto p. 244 De vasto p. 255 De consultatione habenda p. 238 De wardis p. 254 Artic. super Cart. cap. 2. p. 266 Cap 3. p. 285 Cap. 9. p. 286 Cap. 12. p. 260 Cap. 13 14. p. 276 Cap. 15. p. 285 Cap. 18. p. 255 Conjunct feoffat p. 262 Amortizand terris p. 246 Asportat bonis Relig. p. 244 De militibus p. 294 Artic. cleri p. 219 238 Vicecomit p. 219 276 286 De priscis bonis cleri p. 219 244 Prerog reg p. 220 Cap. 3 13. p. 254 Cap. 7. p. 274 Cap. 9. p. 280 Cap. 11. p. 281 Cap. 14 16. p. 268 Subdeacons p. 28 Suite of Court p. 202 Vide Mannor Synods Briton p. 11 Saxon p. 37 Disadvantageous to Prelacy p. 45 Norman p. 127 Without the Laity p. 187 Power p. 248 c. T TAile Saxon law p. 105 Taxes p. 278 Vide Free men Tenures vide Mannor Normans changed them not p. 161 Tenures by severall Lords priority p. 200 By Escheats p 273 Terme Saxon p. 110 Testament Saxon p. 108 After p. 202 c. Thefts cognisance p. 193 195 Tithes originall p. 30 Cognisance p. 43 Normans p. 139 778 238 240 Torne Saxon p. 67 275 Torture amongst the Saxons p. 88 Townships and their Courts Saxon p. 81 Normans p. 134 Treason punished by Saxons p. 98 After p. 194 Trover of goods p. 143 Trotheplight p. 179 V VAcancies of Churches p. 179 c. 185 Vacation vide Terme View of piedges Saxon p. 78 Norman p. 134 After p. 263 275 Villains Saxon p. 56 Normans p. 137 Violence done to Clerks p. 235 Use in deeds of conveyance Saxon p. 107 Usury p. 273 W WArdship p. 148 202 254 270 Warranty Saxon p. 107 Weares p. 268 Wera wergilda Saxon p. 99 Weights and measures Saxons p. 28 Normans p. 142 269 Widdows vide Socage and Knightservice William the first p. 113 c. William Rufus p. 118 Wife Saxon p. 98 Will vide Testament Witnesses deeds Saxon p. 108 Witchery p. 40 Punished by Saxons p. 97 Wita Saxon p. 99 Worship Saxon cognisance p. 39 Wrecks p. 281 FINIS