sentencing one to suffer death upon the Coroners record without allowing the Delinquent liberty of Traverse This Officer also was made by election of the Freeholders in their County-Court as the Sheriff was and from amongst the men of chiefest rank in the County and sworn in their presence but the Kings Writ led the work CHAP. XXIV Of the county-County-Court and the Sheriffs Torne THE Government of the County in times of peace consisted much in the administration of Justice which was done in the publick meetings of the Freeholders and their meetings were either in one place or in several parts of the County in each of which the Sheriff had the managing of the acts done there The meeting of the Free-men in one place was called the Folkmote by the Saxons saving the judgment of the honourable Reporter Coke Instit. 2. p. 69. and of latter times the County-Court the work wherein was partly for consultation and direction concerning the ordering of the County for the safety and peace thereof such as were redress of Grievances election of Officers prevention of dangers c. and partly it was judicial in hearing and determining the common Pleas of the County the Church-affairs and some trespasses done therein but not matters criminal for the Bishop was Judge therein together with the Sheriff and by the Canon he was not to intermeddle in matters of Blood yet neither was the Bishops nor Sheriffs work in that Court other than directory or declaratory for the Free-men were Judges of the act and the other did but edocere jura populo yet in special cases upon petition a Commission issued forth from the King to certain Judges of Oier to joyn with the others in the hearing and determining of such particular cases But in case of injustice or errour the party grieved had liberty of appeal to the Kings Justice Nor did the Common Pleas originally commence in the county-County-Court unless the parties dwelt in several Liberties or Hundreds in the same County and in case any mistake were in the commencing of Suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preheminence In those ancient times this county-County-Court was to be holden but twice a year by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings special Writ or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the Free-men of the County assembled to learn the Law to administer Justice to provide remedy for publick inconvenience and to do their fealty to the King before the Bishop and Sheriff upon Oath and in the work of administring Justice causes concerning the Church must have the precedency so as yet the Canon-Law had not gotten footing in England The other Court wherein the Sheriff had the direction was in the meeting of the Free-men in several parts of the County and this was anciently and now is called the Sheriffs Torne which simply considered is but a Hundred-Court or the Sheriffs Torne to keep the Hundred-Court It was ordered to be kept twice every year viz. at the Lady-day and Michaelmas or soon after Unto this Court all the Free-holders of the Hundred repaired and there they the Bishop and Sheriff executed the same power and work for kind that they did in the County-Court In this Court all the Suits in the Hundred-Court depending had their determination and others had their commencement and proceedings as well the Pleas of the Crown as others Some have conceived it to be a County-Court or superiour thereto but there being no ground thereof I conceive it to be no other than a Visitation of the County by parcels or in circuit CHAP. XXV Of the Division of the County into Hundreds and the Officers and Court thereto belonging COunties were too great to meet upon every occasion and every occasion too mean to put the whole County to that charge and trouble and this induced sub-divisions the first whereof is that of the Hundred now and also anciently so called but as ancient if not more is the name Pagus for the Historian tells us that the Germans in the executing of their Laws a hundred of the Free-men joyned with the chief Lord per pagos vicosque which first were called Centenarii or Hundreders from their number but used for a title of Honour like the Triarii And as a second hereunto I shall add that testimony of the Council at Berkhamsted which speaking the reduction of Suits from the Kings Court ad pagi vel loci praepositum in other places it is rendred to the Governours of the Hundred or Burrough And at this day in Germany their Country is divided into Circuits called Centen or Canton and Centengriecht and the Hundreders they call Centgraven or Hundred-chiefes whether for Government in time of peace or for command in time of War the latter whereof the word Wapentake doth not a little favour Amongst these one was per eminentiam called the Centgrave or Lord of the Hundred and thereunto elected by the Free men of that Hundred and unto whom they granted a stipend in the nature of a Rent called Hundredsettena together with the government of the same The division of the County in this manner was done by the Free-men of the County who are the sole Judges thereof if Polydores testimony may be admitted and it may seem most likely that they ruled their division at the first according to the multitude of the Inhabitants which did occasion the great inequality of the Hundreds at this day The Government of the Hundred rested at the first upon the Lord and the Hundredars but afterwards by Alfred they were found inconvenient because of the multitude and reduced to the Lord or his Bailiff and twelve of the Hundred and these twelve were to be sworn neither to condemn the Innocent nor acquit the Nocent This was the Hundred Court which by the Law was to be holden once every Month and it was a mixt Court of common-Common-pleas and crown-Crown-pleas for the Saxon Laws order that in it there should be done justice to Thieves and the trial in divers cases in that Court is by Ordeale Their common-Common-pleas were cases of a middle nature as well concerning Ecclesiastical persons and things as secular for the greater matters were by Commission or the Kings Writ removed as I formerly observed all Free-holders were bound to present themselves hereat And no sooner did the Defendant appear but he answered the matter charged against him and judgment passed before the Court adjourned except in cases where immediate proof was not to be had albeit it was holden unreasonable in those days to hold so hasty process and therefore the Archbishop of York prefers
time and was questionless put in practice so far 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 King's Court but the Justices must come down to them And yet in case of difficulty the Bench where the common-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 tryed elsewhere in that Circuit which sheweth that the Judges itinerant had their time proportioned out to every County These Tryals also were so favoured as in the then holy times of Advent and Septuagessima or Lent they might be tried which although it was gained by Prayer made by the King to the Bishops as the words of that Law are concluded yet it shews that the Parliament had so much light as to hold the time not inherently holy but meerly sequestred by the Will of the Clergie The Plaintiffs also in Mortdancester may be divers if there be divers Heirs of one Ancestor by one Title And if there be joynt-Tenants and the Writ be against but one and the same pleaded the Writ shall abate but if joynt-Tenancy be pleaded and the Plea be false the Defendant shall be fined and imprisoned And if in the Action the Verdict be for the Plaintiff he shall recover Damages Darrein presentment shall be taken onely in the common Bank. Tryals in the common Bank or other Courts at Westminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally available This might be one cause why the Titles of Churches were still retained at the common Bank whenas all other rode Circuit for that Churches affairs in those times were of high regard Speed of Tryal also was not little regarded herein for Justices by Nisi prius properly were but for enquiry till the Statute at Westm the second made them of Oyer and Terminer in the cases of Quare Impedit and Darrein presentment and gave them power to give Judgment And thus the Commons gained still in point of conveniency Free-men shall be amerced according to the degree of the fault saving to them their Free-hold and to Merchants their main Stock and to Villains their Waynage and Clergie-men shall be amerced according to their Lay-fee Barons shall be amerced by their Peers 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 four Classes Barons Clergie Free-men and Villains But in regard of the parties by whom they are to be amerced they are but two Barons and Free-men for the Clergie Villains and Free-men are to be amerced by the Free-men of the Neighbourhood In what Courts these Amercements shall be the Stat. Marlbr tells 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 onely before the Chief Justices or Justices itinerant The Statute of Westminster adds a fifth Classis of Cities and Towns by express words which seems not so necessary unless in pillaging and oppressing times for they were taken to be within the Statute of Magna Charta though not therein named The rule of the quantity of Amercements is now set down in general and left to the discretion of the Peers or Vicinage which formerly by the Saxons were specially set down in the Law. The rule in general is with a ne plus ultra viz. not further or more than 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 main sustenance of the party is saved yea the Villains however mean they be they must have their maintenance And this sheweth that Villains had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unless they were the Kings Villains who it seemeth were meerly 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 Villains were born under a kind of liberty as in the Saxons time formerly hath been declared which the Law protected against their own Lords No man shall be compelled to make repair or maintain any Bridges Banks or Causies other or otherwise than 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 and more especially of King John those Rivers Waters and Fishings formerly used in common were encroached upon enclosed 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. No Sheriff Constable Coroner or other Bayliff shall hold any Pleas of the Crown Escheators are also expressed in the old books of Magna Charta and the Abridgements however it seemeth that it is within the intent of the Law which was made to avoid the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of Estates of men would enquire of matters concerning the lives of men and Sheriffs that had power of Tryals in cases of Theft as hath been already shewn abused 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 Coroners and Bayliffs or Justices other than by express commission thereto assigned all power to hold Pleas of the Crown by tryal leaving unto them nevertheless power of enquiry of which anciently they had the right If the Kings Tenant dieth supposed in arrear an Inventory shall be made of his Stock 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 first 's time and a customary Law in Henry the second 's time being a remedy against an old Norman Riot of the Lord's seizure of the whole personal Estate of the party deceased under colour of a Law. The second part concerning the overplus hath this additional 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
for the most part are but for enquiry All which saving the Justices itinerant in ancient use were instituted about these times and therewith ended both the work 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 several persons some sitting upon the Common-pleas others upon the Crown-pleas The Judges of these journeying Courts were specially assigned by the King as in the case of the Gaol-delivery or setled by the Law upon the Judges of both Benches at Westminister as in case of Oyer and Terminer 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 Now concerning the Courts that were setled some were setled or annexed to the King 's personal residence as the Chancellor's Court for in these times it began to have a judiciary power of eminent stature and growing out of the decays of the great chief Justice of England Then also the Kings-Bench was annexed by the same Law unto the Kings Court or personal residence as it anciently ever had that honour although it seems the endeavours were to make it like the common-Common-pleas in that particular Another and last Court that was setled in this manner was the Marshals Court which in the original onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places because the Kings attendants were many in those times whenas the Courts of Justice continually attended on his person and this precinct was called the Verge and all cases of debt and covenant where both parties were of the Houshold 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 rural and affixed also to some certain 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 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 illegal and the County-Courts held their right till this Law was made which kept under those inferiour Courts and made them of less account than formerly Nevertheless the Kings Justicies or Writ to the Sheriffs oftentimes enableth the inferiour Court to have cognizance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations Fairs 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 shall be chosen in the County from the wisest greatest and chief men of the Country Of these Officers formerly hath been spoken as touching their election qualification and work this Law brought in no change of any former Law but onely of a former Custom gained by these degenerating times which brought men into place that were far unfit who otherwise of poor 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 holds these men to their work of taking Inquests and Appeals by Indenture between themselves and the Sheriff and these were to be certified at the next coming of the Justices The Free-holders in every County if they will shall elect their own Sheriff unless the Sheriffwick be holden in Fee. This was indeed the ancient custom as the Officers of the Kingdom were elegible by the Common-council of the Kingdom so were all the Officers of the County chosen by the County But within a few years 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 appear for though at the first blush it may seem a priviledge lost by the Freemen 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 days of Edward the Second it was no time for him to gain upon the peoples Liberties Nor had the Statute of Articuli super cartas whereof we how treat been penned with these words if they will. And questionless in these days 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 chief Officers were better disposed in some other hand if rightly pursued Homicide by misfortune shall not be adjudged murder 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 unless 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 loss of Member to death and forfeiture 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 days Robbery punished by death This crime hitherto was punished by fine and loss of member at the utmost but is now made capital and punished with death One example whereof and the first that Story maketh mention of we find of an Irish Nobleman in the days 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 Civil War in a Nation who value their Estates and Liberties above their own lives Rape upon the complaint of the party violated made within forty days shall have right If the Delinquent be convicted without such complaint made he shall be fined
with certain select persons in every County did administer Justice in several Iters or Circuits so when Kings had once gotten the name of being chief in civil affairs as they had it in martial they soon left the Lords behind them who also were willing enough with their own case 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 Vicecomitis which 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 Fountain of Justice which belongeth onely to him that is The Most High or Chief Law-giver The manner how this honourable care of the Safety and Peace of the Kingdom was employed 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 means whereof the publick Peace might be endangered The first was acted diversly according to the present sence of affairs for what was at first done by the Princes in their Circuits with one hundred of the Commons called Comites and that done per pagos vicosque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chief Magistrates of Towns in their Courts and Sheriffs in their Torns as Judices stati for the ease of the people in matters of less moment I say I conceive it was in the Torn 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 years of age at the same And for the same cause it seemeth that one certain Torn every year was holden for inquiries of Homicide unto which all above twelve years of age were to come except Barons Clergie and Women or otherwise all such had been bound to attendance on every Torn Nevertheless the work of the Torns continued not to hear and determine as anciently they had done For in Henry the third's time and formerly divers men had Prisons to their own use some as Palatines others as Lords of Franchise and others by power and usurpation and had the benefit of all Fines incident and by this means many were fined that deserved it not and some also that deserved worse To prevent which evil Henry the third took away that power of holding Crown-pleas And Edward the first took away their power to determine Escapes and left them onely the power of inquiry and to certifie at the next coming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such cool pursuit Men were still ordinarily imprisoned and so continued oftentimes till the coming of the Justices itinerant For whereas in case of Bloudshed the Writ de odio atia was a remedy the other had no remedy but by procuring a Commission of Oyer and Terminer which ordinarily was a cure worse than the hurt As a remedy hereof Edward the first found out the new way of making Justices of Peace as may appear 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 soon made way to resiant And before that Statute it seemeth the King had found out the way if that Note be true which is left revived into memory by that honourable Reporter which relating to the sixth year 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 Henry the first if I mistake not the sence of that clause in his Laws concerning Vagabonds he ordereth that they shall be carried Justiciae quae praeest although the Language be not so Clerkly as to speak the sence out Now though their Work as yet was but in tryal and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriff 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 Sheriff's Torn and Lord's Leet of that little remainder that was left them of Judicatory power in matters that were against the Peace and made their Inquisitory power less regardful 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 seems were jealous of giving the power of determining those offences into any sudden hand To sum up then the first part as touching the punishment of offences against the Peace the wheel is now in the turning the Leets and Torns begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and Terminer disused by the bringing in of a new Order of Justices for the Peace especially appointed and the Parliament as the supreme Providers 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 King's Court after that the common-Common-pleas were setled and confined to a certain place The preserving of the Peace for the future consisted in preventing and suppressing Riots Routs unlawful Assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other Malefactors And herein we are to consider 1. The Laws 2. The Means 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the Peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the King 's own person and therefore we find not onely the assize of Arms but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can find put the same into force of a Law by Parliament finding by experience that Proclamations may declare the King's Mind but not command the Peoples Wills although peradventure the thing enjoyned was of ancient use and little inferiour to Custom or Common Law. Such are the Distempers of Civil Broils that bring up Peace in the rear as a reserve when their own strength is wasted rather than out of any natural inclination thereto A brief
This reducing of Treason into a narrower ground made the Regiment of Felonies to swell A hard thing it was in a Warring time for men to conceit themselves well drest until they were compleatly armed Some used it for a Complement and amongst others honest men had as good cause to use it as some that were ill-affected had a bad and of the last sort some did aim at private revenge though many aimed against the publick quiet But however the intentions of men thus harnassed might be different the looks of them all are so sour that it is hard to know a man for Peace from a man for War. And therefore the people were now so greedy after Peace as they are ready to magnifie or multiply all postures of arm'd men into the worst fashion being well assur'd that the readiest way to keep themselves from the hurt of such men is to have none of them at all But Edward the Third had more need of them than so and will therefore allow men to ride armed but not to Troop together to rob kill or imprison any man and if any person did otherwise it should be Felony or Trespass but not High Treason All this was in favour to the people and yet it was not all for when Mercy groweth profuse it becomes Cruelty Murther is very incident to times of War yet is an Enemy to the Peace of so high a nature that though the King's Pardon may do much yet both King and People declare it an impardonable crime by the Common Law and that the King's Prerogative shall not extend so far as to pardon the same This Justice done to the party dead was a mercy to them that were alive a means to save bloud by bloudshed and not so much by the King's Grant as by his Release One thing more in these cases of bloud the people obtained of the King which they had not so much by Release as by Grant and that was the taking away of Englishire an ancient Badge of the Imperial power of the Danes over the Saxons and which had either continued through the desidiousness of the Saxons in the times of Edward the Confessor unto the Normans time or by them taken up again and continued until these times that Edward the Third was so far desirous to declare his readiness to maintain the Liberties of the people as to be willing to restore them where they failed and in particular took away the manner of presentment of Englishire blotting out the Title and Clause concerning it out of the Articles of Inquiry for the Judges Itinerant And thus whether Native or Foreiner all men are now made in death equal and one Law serves all alike Next unto bloud these times grew more sensible of Ravishments than former times had done For though they had determined a severe penalty against so foul a crime and made it in the nature of a Felony capital which was enough to have scared any man from such attempts yet for the proof of the matter in Fact much rested upon the will of the Woman which for the most part grounded upon self-respects and private prudence laboured to conceal that which could not be made whole by revealing and by after-consent skin'd over the sore as to themselves which corrupted inwardly and endangered the whole Body To cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joynture and Inheritance which otherwise had been saved to her by such compliance as after-consent unto such violations CHAP. X. Of the Course of Civil Justice during these times HOwever the course of the Law concerning matters of the Crown passed in a troubled Wave yet in matters of Common Pleas it passed in a Calm and full Channel as the Reports in Print do sufficiently witness nor was there any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the publick Policy the one touching the course of Inheritance in some particular cases the other touching pleading in the Courts of Civil Justice The first of these was occasioned from Conjuncture of Affairs the case being such that Edward the Third had now gotten himself a new Kingdom unto that of England and must look to maintain that by power which he obtained by force and conducing thereunto must have continual employment of the English in that Service as being most trusty to his Cause And that it is unreasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those foreign parts should thereby lose the benefit of Lieges in the Birth-right of their Children born in those foreign parts Upon consideration had thereof and of a former leading Opinion of the Lawyers Parliament a Declarative Law was made That all Children born without the Kings Legiance whose Father and Mother at the time of their birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and do occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveal it and the substance thereof resteth onely in this To enable the Children of English Natives born beyond the Seas not the Children of those that are of foreign birth though within the Kings Territories in those parts as the Opinion hath been Nor doth any ancient Precedent or Case warrant the same as might be at large manifested if it might conduce to the end of this Discourse And for the same cause after this Statute whenas the Commons would have had a general Naturalizing of all Infants born beyond the Sea within the Kings Segniories the same would not be granted otherwise than according to the former Statute and the Common Law. That which in the next place concerneth the manner of Expression is this That a Child is said to be born out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents born within the Kings Territories beyond the Seas because the words ensuing concerning Certification of Bastardy of such Children are That the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Territories And so the Issue will be That the Legiance of those born in those parts though they are Leiges to the King yet they
the Kings hand against the Subjects a snare to the Kingdom and had not the Wittagenmote in their meeting allayed those distempers the Saxon-government had been little other than a Commonwealth reversed CHAP. XXII Of the manner of the Saxons Government in time of War. AS the condition of States or Kingdoms are diversly considered in War and Peace so also must their Government be For however War in it self be but a feaverish Distemper in a Commonwealth yet in some cases it is as necessary as a kindly Ague in due season is for the preservation of the Body which many times takes distemper rather from the excellency of its constitution than from the abundance of humours Nor did the temper of the Saxon Commonwealth ever shine more than in War while it set a Law upon that which ordinarily is master of all mis-rule and confusion and so fought by rule rather than by passion Their Chief in the first times was chosen by the Freemen in the Field either at the Wittagenmote or the Folkmote according to the extent of his command being carried upon a Shield born upon their shoulders like as now Knights of the Shire are This Emblem they entertained him with to declare their trust in him and the work that was expected from him His first title was Heretock afterwards he was called Duke or Dux the latter whereof turned to a bare Title in the conclusion but the former maintained its own honour so long as the name lasted After his election all sware to be at his order and not to forsake him This was a trick of imbased times for though the Lacedemonian Law was positive that none should flie or break his Rank but get the Victory or die yet were they neither bound by Oath or Penalty shame in those times being accounted worse than death by those brave minds But times growing more old grew also more base-spirited and men could not be drawn into the field holden in Rank by Oaths or Honour and this occasioned that Law of Ina the Saxon King that in such case a Country-Gentleman should be fined One hundred and twenty shillings if he were landed but if otherwise Sixty shillings and the Yeoman Thirty shillings and afterwards the penalty was increased to the forfeiture of all the estate of the Delinquent In their Wars they went forth by bodies collectively as they were united by the law of pledges this made them stick close together for the honour of their Families and Friends and rendered their encounters mortal and to the worsted party commonly fatal for once beaten in the field they could hardly recover either by rallying or gathering a new Army Probable it is that the Lords might have their Villains to follow them in the Battle but the strength consisted of the Freemen and though many were bound by tenure to follow their Lords to the Wars and many were Voluntiers yet it seems all were bound upon call under peril of Fine and were bound to keep Arms for the preservation of the Kingdom their Lords and their own persons and these they might neither pawn nor sell but leave them to descend to their Heirs and in default of them to their Lord and in default of him to their chief pledge and for want of such to the King. They mustered their Arms once every year both in Towns and Hundreds viz. the morrow after Candlemas and such whose bodies were unfit for service were to find sufficient men for service in their stead They were strict in their Discipline if they followed their rule which was made not by the arbitry of the General but by Parliament These amongst other scattered principles concerning Sea-affairs may serve to let us know that the Law-martial and that of the Sea were branches of the positive Laws of the Kingdom setled by the general Vote in the Wittagenmote and not left to the will of a lawless General or Commander so tender and uniform were those times both in their Laws and Liberties CHAP. XXIII Of the Government of the Saxon Kingdom in times of peace and first of the division of the Kingdom into Shires and their Officers IF the Saxon Government was regular in time of War 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 several Circuits or Circles and to assign to each their several Magistrates all of them ruled by one Law like one soul working in several Members to one common good Thus they did here in England having found the Land already divided into several 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 publick 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 folk East or South Sex or Saxons This division by the names seems to be of Saxon original and though by the testimony of Ingulfus and other Writers it might seem to be done by Alfred yet it will appear to be more ancient if the Reader mind the grant of Peter-pence made by King Offa wherein is recorded the several Diocesses and Shires out of which that grant was made under the very same names that they own at this day and that was more ancient than Alfreds time by the space of eighty years Each of these Shires or Counties had their two chief Governours for distributive justice of these the Sheriff was more ancient and worthy Officer being the Lieutenant and aided by the power of the County in certain cases for his Commission extended not to leavy War but to maintain Justice in that County and within the same and in this work he was partly ministerial and partly judicial in the one he was the Kings Servant to execute his Writs in the other he regulated the Courts of Justice under his Survey He was chosen in the County-Court called the Folkmote by the Votes of the Freeholders and as the King himself and the Heretock were intituled to their honour by the peoples favour The Coroner though in original later was nevertheless very ancient he was the more Servant or Officer to the King of the two His work was to enquire upon view of Manslaughter and by Indictment of all Felonies as done contra Coronam which formerly were only contra Pacem and triable only by appeal And also he was to enquire of all Escheats and Forfeitures and them to seize He was also to receive appeals of Felonies and to keep the rolls of the Crown-pleas within the County It 's evident he was an Officer in Alfreds time for that King put a Judge to death for
make a Law somewhat short of a full freedom and yet outreaching that of Bondage which we since have commended to posterity under the Forest-Charter And yet for all that it proved a hard matter for Kings to hunt by Law and the Law it self is a Yoke somewhat too heavy for a Commonwealth to bear in old age if self-denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of Justice THus far of the several Tribes and numbers of this Commonwealth which like so many Conduit-heads derived the influence of Government through the whole body of this Island and in every of which Judiciary power acted it self in all Causes arising within the verge of that Precinct some of which had more extraordinary trial before the King and his Council of Lords according as the parties concerned were of greater degree or the Cause of more publick concernment Examples hereof are the Cases between the Bishop of Winchester and Leoftin in Aetheldred's time and between the two Bishops of Winchester and Durham in Edward's time But custom made this Court stoop to smaller game in latter times and to reach at the practice of the County-Court by sending the Kings Writs to remove certain Causes from the cognizance of those rural Judicatories to their sublime determination And thus became the Council of Lords as an Oracle to the whole Nation and the King amongst the rest as the Priest that many times rendred the Answer or Sentence of that Oracle in his own sense and had it confirmed to him by an Oath se judicium rectum in Regno facturum justitiam per concilium procerum regni sui tenturum so as though he was the first in view yet the Council of Lords was the first in nature and the Cynosure to direct his tongue and actions From this Fountain issued also streams of Judicature into all parts by Judges itinerant under the Kings Commission to reform errors punish defaults in the ordinary rural Judicatories and to dissolve hard and knotty Cases and these were occasioned at the instance of the party and Alfred whose birth this was sent them forth in way of Association with the Sheriff Lord of the Fee or other ordinary Magistrate CHAP. XXXVI Of the Proceedings in Judicature by Indictment Appeal Presentment and Action FOr the proceedings in course the Saxons were wont to begin with matters belonging to the Church and afterward to Secular causes in which if the matters were criminal the most ancient way of proceeding was by Appeal of the party complaining But afterward in cases that concerned Damage Injury or Violence done to the Body of a man or his Estate the King was found to be therein prejudiced besides the prejudice immediately done to the Subject for a man disabled in Body or Estate is disabled to serve the King and the Publick and upon this ground a way was found out to punish the offender by Indictment besides the satisfaction done to the party wronged The proceedings against such Delinquents were by attachment of the party who thereupon gave Pledges for his appearance If the party could not be found a fugam fecit was returned and that was a conviction in Law and pursuit was made after the party by Huy and Cry. If he was thereby taken the ancient way was that of Hallifax-Law but in latter times he was imprisoned or admitted to Bail if the offences were bailable and if the party bailed made default or did not abide the Trial his Bail suffered as Principal If no Bail could be procured the Delinquent was imprisoned till he was legally acquitted but this imprisonment was only in nature of restraint If the Delinquent was found upon the Huy and Cry and would not yield himself he was in repute a common Enemy and as a Wolf any man might kill him as the Law was also the same in case of Vtlary At the time of tryal if at the Kings suit the Delinquent was indicted in this manner by any party present I D. C. do say for the King that I. S. is defamed by good men that he upon day of c. into the House and Goods of did cast fire and the same did burn or if it were for Bloodshed with a Sword did strike and wound him in the left arm and that this was done Feloniously or if the case required Traiterously and if I. S. deny the same I will for the King prove the matter against him as the King ought to do that is to say by Witnesses and Twelve men But if the complaint was at the suit of the party then the Prosecutor sued him upon Appeal in manner following I. C. appealeth D. H. here present for that E. Father Brother Son or Vncle according as the case was to I. C. being in the peace of God and of our Soveraign Lord the King at the dwelling house of E. at c. the said D. H. upon the day of in the year of with a Sword made a Wound of two inches long and six inches deep in the left pap of the body of the said E. whereof he died and this was done Feloniously and of Malice forethought And if the said D. H. shall deny the same the said I. C. is ready to prove the same against him in his body or as a Monk Woman or Clerk behoveth to prove the same that is by Champion for neither Monk Woman nor Clerk was by Law to justifie by Battle in their own person The several causes of Appeal and Indictment may be found in the Law-books to whom I refer the Reader it not being within the compass of this Discourse to fall upon the particulars I shall onely observe the difference between Indictments former and latter and between them and Appeals viz. that Appeals are positive Accusations in the name of the Prosecutor of the fact done by the party appealed whereas Indictments were onely a publication or affirmation of the same of a fact done by the party indicted and wherein Not guilty pleaded served onely as in nature of a Quere to usher in the votes of the Freemen concerning the fact Secondly the difference between former Indictments from these in these days consists in this that the ancient Indictments were in the name of one man those of the later sort are in the name of the Jury and the former were onely of a same the later of the fact A third way of bringing Controversies unto judgement concerned onely such matters as were of less consequence and these were introduced by way of Presentment in the name or behalf of the King in nature of a positive Accusation of one for a Crime first laid down generally and then asserted by a particular fact in this manner I say for our Soveraign Lord the King That H. here is perjured and hath broken saith against the King because whereas H. is or was Chancellour of the King and was
coming nigh unto the push of pike and the King ready for the spoil of both the Barons and Clergy suddenly close their files and like a stone-wall stood firm to each other till the King wearied with succesless labour was glad to give and take breath confirmed the Liberties of the people by his Charter which is now called the Magna Charta for substance and gave such collateral security for performance on his part as did let the World know the thing was as just as himself had been unjust The worst point in the case was that the people got their own by a kind of re disseisin a desperate remedy for a desperate condition wherein the Common-wealth then lay between life and death upon the rack of the will of a King that would be controuled 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 Reign of these several Kings UNder the Title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdom and learning and advancement into place of Government and Honour These were in the Saxons times the flower of the people flourishing only from the honour that ascended from beneath their deportment then was full of chear and safety to the people after that Royalty sprung up the influence thereof upon them exhaled such a reciprocal interest back again as made them less regardful of their own root whereas we see the more mature flowers are the more propense to turn head and look downward to their own original This distemper was yet much worse by the coming in of the Normans whose Nobility besides their Titles of honour in their own Countrey obtained by custom such command and power amongst the meaner sort being Souldiers under them in time of the service in the field that when the Wars had breathed out their last neither of them could forget or were very careful to lay aside This was observed by Kings and advantage espyed to climb to the top of Monarchy by the help of these great men whom if they could make their own all would be theirs and therein they had prevailed much more than they did if they had been wise enough to have maintained them in unity but in that failing the Kings were necessitated to take parties and serve the Nobility to save the main and thus continued they a considerable party in the Government of this Kingdom from the Normans for the space of two hundred years 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 chief Commanders in the field This errour of the Kings was soon espied but could not be avoided it is natural 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 over-top all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must bear 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 himself that is a King and where Kings are immoderate in bestowing power it many times works much woe to the people and not seldom sorrow to the Kings themselves The place of the chief Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-general throughout the Kingdom A power and work too great for any one man in the World that can make no Deputies to manage it and yet in those times you shall meet with one man made up of an Arch-bishop a Legat and chief Justice of England or a Bishop a Lord Chancellour a Legat and chief 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 had or 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 Kingdom more Aristocratical than in after-Ages And if their personal authority was of such value how much rather in their joynt assembly or court of Council concerning which I must agree that as in their original 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 work Meetings of Judges or Courts of Judicature and also matters of defensive War because themselves were the Commanders and lastly in matters of sudden concerment to the State not only 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 Councils have done strained their endeavours beyond their reach especially 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 than Rules for Judicature which ordinary Courts may frame or Judgments in particular cases such as are the constitutions at Clarindon in Henry the Second's time and many other Laws which are reported to be made between the King and his Lords Nor can I look upon such Laws otherwise than as upon Judgments 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 bear the name of Laws Ordinances Constitutions or Judgments the word Statute being of latter 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 and so used may appear in that Fines were levied therein and Writs of Right determined as in the great Case between the two Kings of Navar and Castilè referred to the Judgment of Henry the second and tried in this Court it is said that the Tryal was by Plea and if need were by Battel The Judges in this Court were the Baronage of England for the entry of Judgment in that great Case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. So as though doubtless many were absent some being enemies others discontented others upon other occasions yet all might claim their Votes as Barons The President over all the rest was the Chief Justice as if the King were present then himself and by him was the Sentence or Judgment
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign 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 managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful 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 speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair 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 regain and John 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 gain 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 learn 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-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than 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 righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John 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 John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work 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 several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days 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 appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a Privy-Council taken up unto whom could not regularly belong any juridical 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 Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided 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 coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four 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 Kingdom Neither yet did the first Commission continue so long as four years for within that time Richard Lucy one of the Justices had renounced his Office and betaken himself to a Cloister and yet was neither named in the first Commission nor in the latter nor did the last Commission continue five years for within that time Ralph Glanvil removed from the Northern Circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appear though little to the honour of the justice of the Kingdom or of that Judge however his book commended him to posterity I take it upon the credit of the reporter that this itinerary judicature was setled to hold every Seven years but I find no monument thereof before these days As touching their power certainly it was in point of judicature as large as that of the Court of Lords though not so high It was as large because they had cognizance of all Causes both concerning the Crown and Common-pleas And amongst those of the Crown this onely I shall note that all manner of falshood was inquirable by those Judges which after came to be much invaded by the Clergie I shall say no more of this but that in their original these Iters were little other than visitations of the Country by the grand Council of Lords Nor shall I adde any thing concerning the Vicontiel Courts and other inferiour but what I find in Glanvil that though Robbery belonged to the King's Court yet Thefts belonged to the Sheriff's Court and if the Lords Court intercepts not all batteries and woundings unless in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour Trespasses besides Common-pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certain Laws of Judicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matter of the Crown as of property being desirous to observe the changes of Law with the times and the manner of the growth thereof to that pitch which in these times it hath attained We cannot find in any story that the Saxon Church was infested with any Heresie from their first entrance till this present Generation The first and last Heresie that ever troubled this Island was imbred by Pelagius but that was amongst the Britains and was first battered by the Council or Synod under Germanus but afterwards suppressed by the Zeal of the Saxons who liked nothing of the British breed and for whose sake it suffered more haply than for the foulness of the opinion The Saxon Church leavened from Rome for the space of above five hundred years held on its course without any intermission by cross Doctrine springing up till the time of Henry the second Then entred a Sect whom they called Publicans but were the Albigences as may appear by the decree of Pope Alexander whose opinions I shall not trouble my course with but it seems they were such as crossed their way and Henry the second made the first president of punishing Heresie in the Kingdom under the name of this Sect whom he caused to be brought before a Council of Bishops who endeavoured to convince them of their errour but failing therein they pronounced them Hereticks and delivered them over to the Lay power by which means they were branded in the fore-head whipped and exposed to extremity of the cold according to the decree of the Church died This was the manner and punishment of Hereticks in this Kingdom in those days albeit in seemeth they were then decreed to be burnt in other Countries if that Relation of Cog shall be true which Picardus noteth upon the 13th Chapter of the History of William of Newberry out of which I have inserted this Relation Another Case we meet with in Henry the second 's time concerning Apostacy which was a Crime that as it seems died as soon as it was born for besides that one we find no second thereto in all the file of English story The particular was that a Clerk had renounced his Baptism and turned Jew and for this was convicted by a Council of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortal and the manner of conviction of both by a Council of the Clergie and delivered over to the Lay-power who certainly proceeded according to the direction of the Canon or advice of the Council These if no more were sufficient to demonstrate the growing power of the Clergie however brave the King was against all his Enemies in the field Treason was anciently used onely as a Crime of breach of Trust or Fealty as hath been already noted now it grows into a sadder temper and is made all one with that of laesa Majestas and that Majesty that now-a-days is wrapped up wholly in the person of the King was in Henry the second 's time imparted to the King and Kingdom as in the first times it was more related to the Kingdom And therefore Glanvil in his book of Laws speaking of the Wound of Majesty exemplifies Sedition and destruction of the Kingdom to be in equal degree a Wound of Majesty with the destruction of the person of the King and then he nameth Sedition in the Army and fraudulent conversion of Treasure-trove which properly belongs to the King. All which he saith are punished with Death and forfeiture of Estate and corruption of Bloud for so I take the meaning of the words in relation to what ensueth Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with loss of Member and Estate This was the Law derived from the Normans and accordingly was the direction in the Charge given to the Justices itinerant in Henry the second 's time as appeareth in Hoveden But Treason or Treachery against the Oath Fealty or Bond of Allegiance as of the Servants against the Lord was punished with certain and with painful deaths And therefore though the murther of the King was Treason yet the murther of his Son was no other than as of another man unless it arose from those of his own Servants The penalty of loss of Estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the Moveables was to the Sheriff of the County unto whose cognizance the case did belong and the Land went to the Lord immediately and not to the King. But in all cases of Felony and of a higher nature the party though not the King's Tenant lost his personal Estate to the King for ever his Free-holds also for a year and a day after which they returned to the Lord of the Soil by way of Escheat
saith That he will set down frequentius usitata and it is past question but that the tryal by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the Widow of the Tenant whose Dower is not onely provided for but her reasonable part of her Husband 's personal Estate The original hereof was from the Normans and it was as popular as that of Wardships was Regal and so they made the English women as sure to them as they were sure of their Children The Justices shall by Assize try Disseisins done since the King 's coming over Sea next after the peace made between him and his Son. This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that work which formerly belonged to the County-courts and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the Writ is from the King 's last Voyage or going into Normandy Justices shall do right upon the King 's Writ for half a Knights Fee and under unless in cases of difficulty which are to be referred to the King. The Justices itinerant ended the smaller matters in their Circuits the other were reserved to the King in his Bench. Justices shall enquire of Escheats Lands Churches and Women in the King's gift And of Castle-guard who how much and where So as the Judges itinerant had the work of Escheators and made their Circuits serve as well for the King's profit as justice to the Subjects They used also to take Fealty of the people to the King at one certain time of the year and to demand Homage also These matters of the King's Exchequer made the presence of the Judges less acceptable and it may be occasioned some kind of oppression And as touching Castle-guard it was a Tenure in great use in these bloody times and yet it seemeth they used to take Rent instead of the personal service else had that enquiry how much been improper Of a Tenants holding and of several Lords That one man may hold several Lands of several Lords and so owe service to them all is so common as nothing can be more nevertheless it will not be altogether out of the way to touch somewhat upon the nature of this mutual relation between Lord and Tenant in general that the true nature of the diversity may more fully appear The foundation or subject of service was a piece of Land or other Tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the Tenant undertook to peform service to the Lord and the Lord undertook protection of the Tenant in his right to that Tenement The service was first by service solemnly bound either by Oath which the Lord or his Deputy by the Common-Law hath power to administer as in the case of Fealty in which the Tenant bound himself to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the Tenement so given or otherwise by the Tenants humble acknowledgment and promise not only to perform the services due but even to be devoted to the Lords service to honour him and to adventure limb and life and be true and faithful to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to eách For though it be true that by promise of being the Lord's man a general service may seem to be implied yet in regard that it is upon occasion only of that present Tenure it seemeth to me that it is to be restrained only to those particular services which belong to that Tenement and therefore if that Tenement be holden in Socage although the Tenant be bound to homage yet that homage ties not the Tenant to the service of a Knight nor contrarily doth the homage of a Tenant in Knight-service tie him to that of Socage upon the command of his Lord though he professeth himself to be his man. Nor doth the Tenant's homage bind him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for several Tenements and these two Lords be in War one against the other the Tenant must serve his chief Lord of whom the Capital house is holden or that Lord which was his by priority who may be called the chief Lord because having first received homage he received it absolutely from his Tenant with a saving of the Tenant's Faith made to other Lords and to the King who in order to the publick had power to command a Tenant into War against his own Lord. If therefore he be commanded by the King in such cases unto War he need not question the point of forfeiture but if he be commanded by a chief of his other Lords into War against a party in which another of his Lords is engaged his safest way is to enter upon the work because of his Allegiance to that Lord yet with a salvo of his fealty to that other Lord. But in all ordinary cases Tenants and Lords must have regard to their stipulation for otherwise if either break the other is discharged for ever and if the fault be in the Tenant his Tenement escheats to his Lord and if the Lord fail he loses his Tenure and the Tenant might thenceforth disclaim and hold over for ever Nevertheless the Lords had two Priviledges by common custom belonging to their Tenures which although not mentioned in the stipulation were yet more valuable than all the rest the one concerning matter of profit the other of power That of profit consisted in aids and relief The aids were of three kinds one to make the Lords eldest Son Knight the other to marry his eldest Daughter the third to help him to pay a relief to his Lord Paramount which in my opinion sounds as much as if the Tenants were bound by their Tenures to aid their Lord in all cases of extraordinary charge saving that the Lord could not distrain his Tenant for aid to his War and this according to the Lords discretion for Glanvil saith that the Law determined nothing concerning the quantity or value of these aids These were the Norman ways and savoured so much of Lordship that within that age they were regulated But that of reliefs was an ancient sacrifice as of first-fruits of the Tenement to the Lord in memorial of the first Lords favour in conferring that Tenement and it was first setled in the Saxons time The Lords Priviledge of power extended so far as to distrain his Tenants into his own Court to answer to himself in all causes that concerned his
in Baronius and the Tenth Article in the Clergies complaint first recited although that complaint both in the 10 11 12 and 33 Articles seem to be but clamour upon Officers and not the Kings Court of Justice Clerks Officers to the Exchequer are to be corrected by their Ordinaries and yet not tyed to residence during their attendance on the Exchequer This is in part an answer to the second Article of the Clergies last complaint and a justification thereof as a thing that is pro bono publico Clergie-mens Goods shall not be Distrained either in the High-way or Sanctuary-grounds unless such as have been of late purchase The complaint exhibited in Henry the third's time and the 8th Article was only in ordinary personal Actions but in the complaint made in Edward the second 's time Article 12. is that it is without cause that they are so distrained This Law yieldeth them somewhat viz. immunity from distress within their ancient possessions which had been by ancient custom priviledged but yields nothing as touching their latter purchased Lands because they had no such custom High-ways and Sanctuaries shall be free for such as abjure so as they shall neither be restrained from liberty nor necessaries kept from them Felons may make free confession to the Priest without danger The grievance in the 22th Article of the Clergies complaint in Henry the Thirds time and the ninth in that of the times of Edw. 2. are hereby relieved provided that the Delinquent keeps himself in due order Houses of Religion shall not be oppressed with Corodies Pensions or entertainments of great men This answered the grievance in the 42. and 43. of the first complaint and the 18th of the latter and in effect little other than what was formerly setled by West 1. cap. 1. The Kings Tenant may be cited before the Ordinary out of their own Town and if Excommunicated for want of appearance the Writ de Excommunicato Capiendo shall be awarded A remedy this was against the grievances in the 12 and 33 Articles of the first complaint and in the 10th Article of the last schedule of complaints And thus the Clergie have gotten the day of the Kings Tenants which they had been striving for ever since the Conquest as may appear by what hath been formerly said and now the Kings Tenants are in no better condition than other men viz. they may now be Excommunicated without the Kings license nor is the answer Nunquum fuit negatum to be referred to the point of Excommunication for that power was denyed them but unto the citing them out of their own Parish which cannot be found to be denyed to the Clergie by any thing that yet appeareth A Clerk presented and found unable by the Ordinary shall be tryed again by the Ecclesiastical and not the Lay-Judge Although the fitness or sufficency of the party presented is to be examined by the Ordinary yet the Civil Magistrate hath power in action brought to enquire and determine whether the Ordinaries work was rightly done and so the 17th Article of the last complaint answered Elections shall be free The Laws was of the same with this in the Stat. W. 1. cap. 5. which see before and it may be that the iniquity of the times continued notwithstanding and so occasioned the renewing of this Law. A Clerk having taken Sanctuary shall not be compelled to adjure Nor after confession of the Crime or appealing others before the secular Judge shall be denyed his Clergie Although the Temporal Courts proceeded not so far as to pass sentence against a Clerk that had taken Sanctuary yet they proceeded to enquiry as may appear by what was said formerly concerning the Stat. West 1. cap. 2. and therefore though this Law in the 15th Chap. alloweth that a Clerk in Sanctuary shall enjoy his Ecclesiastical liberty yet the words legi Regni se reddens are interposed and the reason is because the King upon Indictment found had right to the Delinquents goods and profits of his Lands until due purgation and then his Lands were by a Writ out of the Chancery to be restored to him again nor could any purgation regularly pass before the party was Indicted No Religious House shall be charged with Tax to any Superiour without the Realm of England nor shall send to any visitation out of England This was neither at the request of the Clergie nor act of kindness intended unto them but for the good of the Kingdom to prevent the bleeding of the Treasure of the Kingdom into Foraign parts Patrons of Abbies shall have their custody during their vacancies This was the ancient Law now revived by the Clergies consent and intended for the safeguard of the Revenues of the Houses and their maintenance and therefore it is with a sicut superius dictum est cap. 5. The Goods of the Clergie freed from purveyance unless they will. It was a favour given by Edw. 2. to the Clergie to gain their good will after the death of Gaveston the shameful defeat received in Scotland and some particular testimonies of God's displeasure whereof he began to be somewhat sensible Franchises holden by prescription or Charter confirmed and Tryals by Quo Warranto allowed to be in Eyer It was the common share of the great men but especially of the Clergie to have their Franchises exposed to the prey of the Eagles or to such as hawked for them and it is likely the King had not so easily for gone his prize if all the fat had fall'n to his own share but perceiving that more benefit came to his instruments than was meet and himself little the better thereby he sacrificed his Judges to the people but it was to his own behoof and so gained both credit and favour from the people and profit to himself and in some measure satisfied the 48 49 50. Articles of the Clergies complaint in the time of Henry the Third and the 15th Article of their last complaint Lands or Tenements aliened to a Religious house shall escheat to the Lord if the alienor take the same back to hold of that House The ground hereof principally was the prejudice done to the Lord by destruction of the Tenure albeit that it had been an ancient grievance complained of in the Saxon times That the Clergie were covetous and swallowed down estates and thereby weakned the Kingdom But now they are become even cheaters serving the turns of treacherous Tenants that would give their Lands by compact with the Church-men to receive them again from them to hold of the Church which was a liberty that men thirsted after in those times wherein the Church-men were more adored than their Images It seems this Law was made after Bracton's time if that be true in the second Institutes for he saith that a man may give his Lands to any one whether Christian or Jew or religious person
redemption of their Captive King for Knighting of the Kings Son and for his Daughters Marriage because these three might be due by the Common-Law the two latter by custom the former by common right although mentioned from the late disaster of King Richard which King John might with shame enough remember and expect the same measure from the censure of an unquiet conscience I shall not enter into debate concerning the omission hereof in the later Charters possibly it might seem a tautology Nor concerning the restriction as if it did imply that the Burgesses had Vote only in cases of general assesments but shall leave it to the consideration of the Reader No Distress shall be taken for greater service or other matter than is due Distresses are in nature no other than a summons in act or the bringing of a man to answer by seizure of part of his Goods and it was used by the Saxons as hath been shewed and because the rich men under colour of seeking their right many times sought for wrong and though they could not prevail in the issue yet prevailed so far that the Defendant could not escape without charge and hinderance therefore the Law provided a Writ of remedy against unjust vexation which Glanvil remembreth us of and yet because that remedy also carried with it matter of charge and disturbance to the Plaintiff and so the remedy might be worse than the disease therefore the Law defined distresses by circumstances of person matter time and place under penalties of fine and amercement besides the recompence to the party first it must not be taken but by leave from the Kings Court unless in case of matters due by common right and upon complaint made by the Plaintiff The King sent out a Summons in this manner Henricus Rex Ang. Hominibus Abbatis de Ramsey salutem Precipio quod cito juste reddatis Abbati Domino vestro quicquid ei debetis in censu firma debitis placitis quod si nolueritis ipse vos inde constringat per pecuniam vestram And in all cases of matters due by common right the distress never was done in an arbitrary way but by Judicial Act in the Lord's Court. Secondly no distress for suit shall be made out of the Fee nor against any person but such as are of that Fee. Nor shall any distress be made in the King's High-way or open street but by the King's Officer and special Writ because distress is incident to service and that is due as from the Fee and therefore by common right the same must be recovered from the Fee and such as owe service in the same but the High-way or open street are more properly a Franchise belonging to the King although the Soil haply may be the Lords And therefore it was an old Law that they should be under the King's safeguard Sit pax publica per communes vias and no violence must be there tolerated but by the King 's special Writ which presupposeth the especial notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distress for it must not be excessive and also in keeping thereof for if the owner will he may replevy the same according to the ancient course and the Sheriff must grant replevy if it be demanded although formerly no replevy was without special Writ and yet that also not always readily obeyed for the times were such as the Lords were bold with the King's Courts and Ministers and refused the order of the Law. Now in such cases wherein the matter concerned contempt of the King's Authority a Fine was set upon the Offender but in case it concerned onely a Tort done to the party he was amerced The one is called Redemption because the penalty otherwise must lie upon the person if it be not redeemed by pecuniary Fine the other is called Amercement which is originally a satisfaction unto the party wronged by recompence out of the personal Estate of the Delinquent Thirdly as touching the matter of the distress it must not be of Plough beasts or Sheep unless in case of damage fesant if other distress may be had for the Law had a care of such Cattel as were most of publick concernment and which was the main stock of subsistence so far as Justice would allow And therefore the unjust taking of any man's Cattel by any person whatsoever is liable to the same penalties that unjust distresses are Fourthly concerning the using of the distress it must not be sold no not in the King's case till fifteen days be past after it is taken nor must it be carried out of the County but it must be so impounded as the owner may come to feed it and it must be discharged if the owner give security of satisfaction before the return of the Writ Fifthly the intent of the distresses must be that which is just and therefore not for other suit than by the Feoffment is due or else by Prescription and in case many are joyntly seized the suit shall be by one and the rest shall contribute Nor must any man be compelled to shew his Title to his Land by distress The Common-pleas shall be holden in one certain place The Office of Judge of the Common-pleas was in my opinion distinct and several from that of the Crown-pleas nor though one and the same man might execute both Authorities doth it therefore follow that it was by one and the same power as if being Judge he had thereby power in all matters of the Common-pleas and also of the Crown For though it be true that Bracton saith The King hath one proper Court wherein are the Chief Judges which both by his own Testimony and Briton's also did hear and determine Causes of all sorts yet is it true also that it was by Appeal or Writ of Errour as in case of false Judgment and that the King had plures curias which doubtless had their proper work And in the time of Henry the second it is clear that six were especially assigned for the Common-pleas throughout the whole Realm and yet by another especial Commission or Letters-Patents the same men might also have power to determine matters of the Crown as at this day in their several Circuits This Law therefore doth not as I conceive work any alteration but onely in this that whereas formerly the Judges of Common-pleas attended on the King's Court continually as all other Judges did and whither the King removed they did the like which was a great uncertainty and grievance unto the Commons henceforth they are fixed to a certain place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely and by the Justices itinerant sent by the King or his Chief Justices The Law was so declared in Henry the second 's
and Kent are saved out of this Law by the Statute the first whereof saves the Land to the Heir from the Lord and the second saves the same to the Heirs Males or for want of such to the Heirs Females and to the Wife her moity until she be espoused to another man unless she shall forfeit the same by fornication during her Widow-hood And by the same Law also the King had all Escheats of the Tenants of Archbishops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden All Wears shall be destroyed but such as are by the Sea-coast The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the Wears to his own use as appeareth by a Charter made to the City of London recited in the second Institutes upon this Law and this was to the detriment of the Free-men especially of the City of London in regard that all Free-men were to have right of free passage through Rivers as well as through Highways and purprestures in either were equally noxious to the common liberty And therefore that which is set down under the example or instance of the Rivers of Thames and Medway contained all the Rivers in England albeit that other parts of the Kingdom had not the like present regard as the City of London had The Writ of precipe in capite shall not be granted of any Freehold whereby a man may be in danger of losing his Court thereby It seemeth that it was one of the oppressions in those times that if a Suit were commenced in the inferiour or Lords Court concerning a Freehold a Writ of precipe in capite might be had upon a Surmise that the Freehold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoil of the Demandants case and therefore I think the Charter of King John instead of the word Court hath the word Cause There shall be but one known Weight and Measure and one breadth of Cloaths throughout the Realm of England This Law of Weights and Measures was anciently established amongst the Saxons as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John. And as touching the measure of the breadth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudicial to the common Trade of the Kingdom it was setled in this manner to avoid deceit and to establish a known price of Cloaths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the Measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of Life and Member shall be readily granted without Fees. This was a Law of latter original made to take away a Norman oppression for by the Saxon Law as hath been already noted No man was imprisoned for Crime not bailable beyond the next county-County-court or Sheriff's Torn but when those rural Courts began to lose their power and the Kings Courts to devour Tryals of that nature especially by the means of the Justices itinerant which were but rare and for divers years many times intermitted during all which time supposed Offenders must lie in Prison which was quite contrary to the liberty of the Free men amongst the Saxons This occasioned a new device to save the common liberty by special Writs sued out by the party imprisoned or under bail supposing himself circumvented by hatred and malice and by the same directed to the Sheriff and others an Inquisition was taken and Tryal made of the Offence whether he deserved loss of Life or Member and if it were found for the supposed Offender he was bailed till the next coming of the Justices and for this the Writ was called the Writ of inquisition of Life or Member and sometimes the Writ de odio atia But these Inquests were soon become degenerate and subject to much corruption and therefore as soon met with a countercheck from the Law Or first rather a regulation for it was ordained that the Inquest should be chosen upon Oath and that two of the Inquest at least should be Knights and those not interessed in the Cause But yet this could not rectifie the matter for it seemed so impossible to do Justice and shew Mercy this way that the Writ is at length taken away and men left to their lot till the coming of Justices itinerant But this could not be endured above seven years for though the King be a brave Souldier and prosperous yet the people overcome him and recover their Writs de odio atia again Lords shall have the Wardships of their Tenants Heirs although they hold also of the King in Petit Serjeanty Socage Burgage or Fee-farm Inferiour Lords had the same right of Wardships with the King for their Tenures in Knight-service although their Tenants did hold also of the King unless they held of him in Knight-service which was a service done by the Tenant's own person or by the person of his Esquire or other deputy in his stead But as touching such service as was wont to be done to him by render or serving him with Arms or other utensils this was no Knight-service though such utensils concerned War but was called Petit Serjeanty as in the Law-books doth appear Nevertheless Henry the Third had usurped Wardships in such cases also and the same amongst others occasioned the Barons Wars No Judge shall compel a Free-man to confess matter against himself upon Oath without complaint first made against him Nor shall receive any complaint without present proof This Law in the Original is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in express words it is thus No Judge shall compel any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter enquired after and therefore they used in such cases to put him to Oath and if he denied the matter or acquitted himself the Judge would sometimes discharge him or otherwise put him to his Compurgators and this was called lex manifesta or lex apparens And it was a trick first brought in by the Clergie and the Temporal Judges imitated them therein and this became a snare and sore burthen to the Subjects To avoid which they complain of this new kind of Trial and for remedy of this usurpation this Law reviveth and establisheth the onely and old way of Trial for Glanvil saith Ob infamiam non solet juxta legem terrae aliquis per
are to be ordered by Tutors than Children and therefore this may be annexed to the rest of the Liberties as well as the other Nevertheless it seemeth that the Laws took them into their regard in respect of their Estates which might be abused to the prejudice of the Publick rather than out of any respect had to their persons Now because there is a difference between the disability of these persons the one being perpetual the other temporary therefore is there also by these Laws a difference in the disposal of their Estates for the Tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the Tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the natural affection going along with the blood and this so continued in custom until these times for though the Mirrour of Justice saith that Henry the First brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the First speaking of these kind of persons saith Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their Parents and friends But let the time of the entrance of this Law be never so uncertain it is now a declared Law that the King in such cases is the common Curator or Tutor of all such persons as he is a Chief Justice rendring to every one his right The King shall have the Wrecks of the Sea. What shall be called a Wreck the Statute at West 1. declareth viz. Where the Ship so perisheth that nothing therein escapeth alive and these are rather in their original committed to the King as a Curator than given him as a Proprietor although that Custom hath since setled a kind of right which may perhaps be accounted rather a Title by Estoppel For the fundamental ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appear The Heir in Socage-tenure shall have an Action of Waste and an account against his Guardian for the profits of the Lands and Marriage The Heir in Socage being under age shall also be under custody of such Guardian of the next kinred who cannot challenge right of Inheritance in such Lands so holden as if the Lands descended from the Father's side the Mother or next of the kinred of the Mothers side shall have the custody and so if the Lands descend from the Mother the Father or next kinred of the Father's side shall have the custody And this custody bringeth with it an Authority or Power onely and no Right as in case of the Heir in Knight-service and therefore cannot be granted over as the Wardship in Knight-service might but the Guardian in Socage remaineth accomptant to the Heir for all profits both of Land and Marriage The full age of Tenant in Socage is such age wherein he is able to do that service which is Fourteen years for at such age he may be able by common repute to aid in Tillage of the ground which is his proper service But the Son of a Burgess hath no set time of full Age but at such time as he can tell Money and measure Cloath and such work as concerns that calling Widows deforced of their Dower of Quarentine shall by Action recover damages till they recover their Dower They shall also have power to devise their crop arising from her Dower It was used that the Heir should have the crop with the Land but this Statute altered that former usage and yet saved the Lord's liberty to distrain if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilful in the Law. It was none of the meanest Liberties of the Freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no less a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wills and not of the Laws of the Kingdom as the complaints of the Clergy in the times of Henry the Third do witness Nevertheless because many mens cases befel not directly within the Letter of any Law for remedy and yet were very burthensome for want of remedy it is provided by this Law that such emergent cases that do fall within the inconvenience shall be comprehended within the remedy of that Law. Aid to make the Son of the Lord a Knight and to marry his eldest Daughter shall be assessed after the rate of twenty shillings for a Knights Fee and twenty shillings for twenty pounds in yearly value of Socage-tenure The uncertainties of Aids are by this Law reduced and setled as touching the sum and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular sum hereby but also the age of the Son when he was to be made a Knight viz. at the age of Fifteen years too soon for him to perform Knight-service but not too soon for the Lord to get his money And the Daughter likewise was allowed to be fit for Marriage at Seven years of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gain that made the Law and it was not amiss to have the aid beforehand though the marriage succeeded not for many years after and if the Lord died in the interim the Executors having Assets paid it or otherwise his Heir CHAP. LXVIII Of Courts and their Proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of later birth albeit even they also have been of ancient constitutions and divers of them itinerant also and some of them setled in one place The work of the Justices itinerant was universal comprehending both the matters of the Crown and common-Common-pleas That of Oyer and Terminer is onely of Crown-pleas originally commenced and enquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large work that is to deliver the Gaols of all criminal offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognizance of common-Common-pleas onely and
and Masters under Cade and Straw that might have brought the Commonwealth into a hideous Chaos had not the Lords and Great men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kind of rage that put it self forth beyond the ordinary temper of his mind Much of this mischief was imputed to Wickliff's Doctrine for it is an ordinary thing to proclaim all evils concurring with the very joynt of Reformation to be the proper fruits thereof But I look upon it as a fruit of corruption that endeavours to stop the breath of Reformation in the birth And there is somewhat of a hidden influence from above in the thing for it was not onely the Cup of England to be thus troubled but France and other places had their portion suitable The King's minority rendred him unequal unto these contrary motions he was in his Eleventh year when he entred the Throne and which was worse his years came on faster than his parts but his work posted before them all The common help of Protectors left him yet more unhappy for they were prepossessed with strong engagements of particular Interests and so were either not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affairs and Interests an uncertain good that brings forth a certain evil for variety of Instruments and Interests move several ways and though the end be one the difference concerning the way many times doth as much hinder the Journey as so many blocks in the way The Protectorship was thrice changed the King's Uncles had the first essay any one of them was big enough for one Kingdom but all of them together were too great to make one Protector The Duke of Lancaster would have done well alone if he had been alone and minded that work alone but he being somewhat engaged with the Wickliffists and so entangled with the Clergy and other restless spirits and drawn off by his private aim at the Crown of Castile saw this work too much and so he warily withdrew himself leaving the Directory to a Committee of Lords a soveraign Plaister questionless where the times are whole but not for these distractions wherein even the Committee it self suffered its share Thus the breach is made the wider and for a cure of all the Government is committed into one hand wherein the Earl of Warwick acquitted himself well for he was wise enough to observe such as the people most honoured And thus passed over the two first years of the King's Reign The remainder of the King's minority was rather in common repute than in true account For the King however young took little more from the Protector than he saw meet to colour his own commands with opinion of Regularity and so his Will came to full strength before his Wisdom budded Thus lifted up he sets himself above all interests of Parliaments Protectors Counsellors Uncles Wise men and Law leaving them all to be rules for those below And so long as the King's desire is thus served he is content to be reputed a Minor and be as it were under protection of others though not under their direction and is content to continue thus until his Two and twentieth year Some might think him very moderate had he been moderate but he forbears suing out his Livery so long as he may live without care and spend without controul For by this time the humour of his great Grandfather budded in him he pawned his Heart to young men of vast desires and some say so inordinately as he prostituted his Chastity unto them And it is no wonder if the Revenues of the Crown are insufficient for such Masters This the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crown deflowred for want of maintenance it is very true nor to see the Crown deflowred of its maintenance A Parliament therefore is called in which divers Lords associate and prepare Physick for the King 's lavish humour which being administred wrought for Ten years after till it had purged him of his Life and the Kingdom of their King. It was an Act of Parliament that gave power to Fourteen Lords and others to regulate the profits and Revenues of the Crown and to do Justice to the people this was to continue for one whole year The Parasites no sooner found the effect hereof to their cost but the King grows sick of it and finds an Antidote to over-rule Acts of Parliament by Acts of Privy-Council declares this ill-favoured Commission void and the Contrivers Advisers and Enforcers Traytors To make it more Majestical he causeth the Judges to subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in haste an Impeachment of these Commissioners of High Treason and supposing that they would not readily stoop himself stoops lower for he would put his Right to trial by Battle which was already his own by the judgement of the Masters of the Law For so they may be well called seeing they had thus mastered it In this the King had the worst for he lost his Honour and himself God hath a care of common Right even amongst Idolaters Then comes the Parliament of wonders wherein the Kings Party are declared Traytors and the chief Judges with their Law judged by another Law. The King not meddled with thinks it high time to come out of his Minority and assumes the Government of the Kingdom and himself to himself being now Three and twenty years of Age old enough to have done well if he had cared for it But resolving to follow the way of his own will at length it led him to his own ruine Onely for the present two things delayed it viz. the Authority Wisdom and Moderation of his Unkles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the people The benevolent aspect of the people not for their own advantage but for the publick quiet procured many Parlies and Interviews between the King and people and many Laws for the upholding of the Court and Government although both War Laws Justice and Councils all are faint as all is faint in that man that hath once dismann'd himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himself being nigh Eight and twenty years old takes a Creature like a Wife but in truth a Childe of Eight years old and this is to get peace with France It is no wonder if now he hunts after unlawful game and that being ill taken brings all things out of order For abused Marrige never wants wo. Civil men are now looked upon as severe Cato's and his Unkles especially the Duke of Gloucester with a jealous eye which accomplished his death in
the conclusion The Dukes of Lancaster and York forsake the Court Favourites step into their rooms The old way of the eleventh year is re-assumed Belknap and others are pardoned and made of the Cabinet The pardon of the Earl of Arundel is adnulled contrary to the advice of the major part and the Archbishop the Earl's Brother is banished The Lords forsake the wilful King still the King's Jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further work The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the Joynts of the Kingdom in correspondency And he was ill requited for all his Estate is seized upon The Duke of Hertford and his party are looked upon by the people as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament down goes all the work of the tenth and eleventh years Parliament which had never been if that Parliament had continued by adjournment The King raiseth a power which he calleth his Guard of Cheshire-men under the terrour of this displaying Rod the Parliament and Kingdom are brought to Confession Cheshire for this service is made a Principality and thus goes Counties up and Kingdoms down The King's Conscience whispers a sad message of dethroning and well it might be for he knew he had deserved it Against this danger he entrenches himself in an Act of Parliament that made it Treason To purpose and endeavour to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by engagement from the Parliament but he missed the right conclusion for want of Logick For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it self and then hath the King gained no more than a false birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted That all procurers of the Statute of 10 Richard the Second and the Commission and procurers of the King's assent thereto and hinderers of the King's proceedings are adjudged Traytors All these reach onely the Branches the Root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same it is further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the King's Justices for offences by them committed in Parliament without the King's consent and all gainsayers are Traitors These and the like Aphorisms once voted by the Cheshire-men assented unto by the Parliament with the Kings Fiat must pass for currant to the Judges and if by them confirmed or allowed will in the King's opinion make it a Law for ever That the King in all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the Tenth year and Belknap's entertainment and so dealt warily their opinion is thus set down It belongeth to the Parliament to declare Treason yet if I were a Peer and were commanded I should agree So did Thorning under-write and thereunto also consented Rickill and Sir Walter Clopton the last being chief-Chief-Justice of the King's Bench the first chief-Chief-Justice of the common-Common-pleas and the second another Judge of the same Bench. The sum in plainer sence is that if they were Peers they would agree but as Judges they would be silent And thus the Parliament of England by the first of these four last-mentioned conclusions attainted themselves by the second yielded up their Liberties by the third their Lives and by the last would have done more or been less And to fill up the measure of all they assigned over a right of Legislative power unto six Lords and three Commons and yet the King not content superadded that it should be Treason for any man to endeavour to repeal any of their determinations The Commonwealth thus underneath the King tramples upon all at once for having espied the shadow of a Crown fleeting from him in Ireland he pursues it leaves the noble Crown of England in the base condition of a Farm subject to strip and waste by mean men and crosses the Irish Seas with an Army This was one of England's Climacterical years under a Disease so desperate that no hope was left but by a desperate Cure by sudden bleeding in the Head and cutting off that Member that is a principle of motion in the Body For it was not many Moneths e're the wind of affairs changed the King now in Ireland another steps into the Throne The noise hereof makes him return afar off enraged but the nigher he comes the cooler he grows his Conscience revives his Courage decays and leaving his Army his Lordship Kingdom and Liberty behind as a naked man submits himself to release all Homage and Fealty to resign his Crown and Dignity his Titles and Authority to acknowledge himself unworthy and insufficient to reign to swear never to repent of his resignation And thus if he will have any quiet this wilful man must be content for the future neither to will nor desire And poor England must for a time be contented with a doleful condition in which the King cannot rule and the Parliament will not and the whole body like a Chaos capable of any form that the next daring spirit shall brood upon it CHAP. II. Of the State of the King and Parliament in relation of it to him and him to it A King in Parliament is like the first-born of Jacob The excellency of Dignity and the excellency of Power but alone unstable as water Examples of both these we have in these two Kings Whereof the first was Crowned by the Parliament and Crowned it the latter also Crowned it but with Thorns and yet the Parliament in all held on that wise way that it neither exceeded its own bounds nor lost its own right I shall enter into the consideration of particulars under these heads First In relation more immediately to the interest of the King Secondly To the interest of the Kingdom in general The King though higher than all the people by the head and so hath the Prerogative of Honour as the most worthy yet his strength and abilities originally do rise from beneath otherwise he is but like a General without an Army the Title big but airy and many times his person subject to so much danger that instead of drawing the Eyes of all the people to look upon him with admiration they are drawn to look to him with observation and in this
are not of the Legiance of the King of England but as Lord of that Territory The other matter to be observed concerning pleading in the Courts of Civil Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman Tongue they shall be henceforth in English out of an inconvenience I believe rather supposed than felt For though some kind of knowledge of Law-terms may be encreased thereby yet unless that shall be professedly studied it will breed nothing but Notions and they an over-weening conceit which many times sets men to Suits in Law to their own loss like some weak influence of the Celestial Bodies that are strong enough to stir up humours but not to expel them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgal CHAP. XI Of the Militia in these times WAR is ever terrible but if just and well governed Majestical the one may excite resistance and defence but the other conquers before blow given because it convinceth the Judgment and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at War with its own understanding nor can such a heart consider such a War otherwise than as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessful It is no strange thing for Kings to miscarry in their Wars because it is rarely seen that they are under good Counsel but if a Christian Counsel miscarry we may conclude it extraordinary in the efficient cause and no less wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of honour but of safety and continuance to settle fundamental Laws of War against time of War as of Peace in time of Peace Neither was England deficient herein saving that antient times were more obscure in the particulars and these days revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation For being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he nevertheless received the same submitting both it and himself to the Directory of the Parliament in making a War with France which was three to one against him in very respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his Rear The like may be observed of his War with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Foreign War without the concurrence of the common consent of the People and that not onely for the thing it self but also for his own Personal Engagement in the Service For a King though he be the Generalissimo yet is he so from the People and his Person being of that high value is not to be exposed to every occasion that may provoke War without due advice first had with the publick Council because in his Person the People adventureth as well as himself And in this manner were the Wars in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the Arrays of Men for War I find no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and Obligati ad arma could do little either in the calling of men forth or arming them for the War. But in case of publick defence against Foreigners men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such Obligations by writing called in and damned as dishonourable to the King. In foreign service the course was no less regular if the War was by special direction of the Parliament they likewise ordered the manner of the raising of Souldiers viz. so many out of a County and so many out of a Burrough all which are by the express words of the Statute said to be granted by the Knights and Burgesses But if it was onely upon the King 's particular instigation and not by order or consent of the Parliament the King in such case being Voluntier all the Souldiers were in like manner unless some particular Law or Tenure otherwise obliged them As touching the arming of Souldiers the Law was yet more certain and particular If the Souldiers were men of Estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by virtue of their Tenures The first of these is confirmed by Edward the Third in Parliament wherein he willeth that no man shall be urged to arm himself otherwise than he was wont in the times of his Ancestors Kings of England The two latter were likewise confirmed by another Law made in the same Kings time whereby it was ordained That no Man shall be constrained to find Men of Arms Hoblers nor Archers other than those which hold by such services if it be not by common consent and grant made in Parliament By Men of Arms meaning those which we now call Curiassieres or compleat armed by Hoblers meaning those now called light Horse-men The Archers served on Foot and were principally armed with Bows although they had also Swords or other such offensive portable Weapons The first of these concerneth onely the arming of a man 's own person the other the finding of Souldiers and arming of them and both together sufficient for the safeguard of the Rights and Liberties of the People invaded in those times by Commissions of Array and such other expressions of Prerogative Royal for as touching the arming of a man 's own person the Statute of 1 Edward 3. formerly mentioned is clear in the point And though the Statute of 25 Edward 3. doth not in the latter direct as touching the finding Arms for others as is urged in his Majesty's Answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleat Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private person in such cases to command him to the service it seemeth clear to me that the Statute must intend the arming of him with compleat Arms and not the armed person of the man. The Souldiery thus arrayed they are in the next place to be called to their Rendezvouz the Knights by Summons sent to the Sheriff but the rest by Proclamation If the Knights appear
not a Fine is set upon them if others run away from their Conduct a Writ issued to the Serjeant at Arms to apprehend them if they were not arrayed then the Recognizances of such as undertook the work are estreated All plunder or spoil committed by the Souldiers in their Conduct was to be satisfied by the Conductor or Commander that received their Pay or Charges for their Conduct And although the Charges for Conduct had formerly de facto been defrayed sometimes by the County by virtue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the Third claim any such duty but disclaimed it and ordained by Act of Parliament That both the Pay and Conduct-money should be disbursed by the King from the time of their departure from their several Counties For to this end and for the safeguard of the Realm and for the maintenance of the Wars of Scotland France and Gascoign the King had supply from Aids Reliefs Wardshipâ— Marriages Customs and Escheats Nor did the Parliament grant any particular Aid by the Assessment or publick Tax but when they evidently saw the burthen of War to be extraordinary as it befel in the Conquest of so great and potent a Realm as France was Wherein although the Taxes were many yet so well ordered were they and with that compliance from the King that the people endured them with much patience so long as the King lived Lastly in all these Cases of Foreign Wars for of such Cases onely these Laws are to be understood it was especially provided That no man should be distrained or urged against his will to go out of his County But in case of defensive War the course was otherwise for all men in such cases are bound by the Law of Nature to defend their own Country from Invasion in order to the safety of their own Estates and Habitations They were arrayed or gathered together by Commission of Array from the King armed according to the Laws formerly mentioned and not by Arbitrary order of the Commissioners And by virtue of such Commissions they were drawn forth and led to places where need required Sometimes to one Coast sometimes to another yet not altogether at the Kings pleasure for the Parliament upon occasion set rules of Restriction and generally exempted the North-parts beyond Humber from being drawn Southward and left them as a reserve for the defence of the Marches bordering upon Scotland and sometimes ordered the Array should be executed onely in some particular Counties and other times wholly exempted the County adjacent within six miles of the Sea-coast And because the King might under colour of a defence array the people where no such occasion led the way and command them out of their Counties a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Books in print whether determinatively or carelesly I cannot tell but all of them to differ in sence one from another and from the Truth Some of the common Books have the words thus None shall be distrained to go out of their Counties unless for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdom Others read it thus But where necessity requireth and the coming of strange Enemies into the Kingdom The Kings Answer to the Parliaments Declaration concerning the Commission of Array would read it thus Vnless in case of Necessity or of sudden coming of strange Enemies c. But the words in the Roll are these Et que nulls ne soient distresses d'aller hors de les Countees si non pur Cause de necessity de suddaine venue des Stranges Enemies en Reyaulme In English thus word for word And that none be distrained to go out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdom which words determine the point That none shall be by Commission of Array drawn out of their County but in case of necessity And secondly that this case of necessity is onely the coming of strange Enemies into or in the Kingdom so as probably the Invasion must be actual before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publick note and common fame foregoing for then the ordinary course either of Parliament or otherwise must be used to call those that are bound by Statute or Tenures or Voluntiers to that service seeing every Invasion is not so fatal as to require a Commission for a General Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvin's Case lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to go with the King in his Wars as well within the Realm as without and this Legiance he telleth us is that natural Legiance which he saith is absolute and indefinite c. and not local which if not so then were not the English bound to go out of England an inference that is neither necessary nor is the thing affirmed certain It is not necessary because English men may be bound to go out of England by vertue of their Tenures particular Contract or else by special Act of Parliament and not by vertue of that natural Legiance which in truth is nowhere Now for the maintenance of the point the Reporter alledgeth two Statutes affirming the thing and common practice and lastly Authorities of the Judges of the Common Law. As touching the Statutes one in Henry the Seventh's time and the other in Edward the Sixth's time I shall speak of them in the succeeding times when we come at them for they are no Warrant of the Law in these times whereof we now treat much less is the modern practice of these later days a demonstration of the Law in the times of Edward the Third nor of the nature of the Law in any time seeing that it is obvious to times as well as particular persons to do and suffer things to be done which ought not so to be and therefore I shall for the present lay those two Considerations aside But as touching the Opinions of the Judges of the Common Law two Cases are cited in the Affirmative which seem in the Negative and the rest conclude not to the point The first of the two Cases is the opinion of Justice Thirning in the time of Henry the Fourth word for word thus A Protection lies for the Defendant in a Writ upon the Statute of Labourers and yet the Defendant shall not have such matter by way of Plea viz. That the King hath retained him to go beyond the Sea for the King cannot compel a man to go out of the Kingdom that is as the Reporter saith Not without Wages intimating thereby that if the King shall tender Wages to
and made all practices contrary to the rule damageable to the party Thus far concerning the matters in Cognizance now touching the power of the Keys English Prelacy having laid aside the pretentions of Rome they put the world to a gaze to see which way they would go In the innocent infancy of Prelacy it was led by the hand by the Presbytery and would do nothing without them afterwards having gained some degree of height and strength they entred themselves to be Chariot-horses to the Roman Sun till they had set all on fire Now unharnest it is expected they should return to their former Wits nevertheless forgetting their ancient Yoak-fellows the rural Presbyters they stable with the King use his name sometimes but more often their own serving him with Supremacie as he them with authority beyond their Sphere They raise him above Parliament he them above Councils so as they do what they list let the Plebeian Presbyter will or nill they are the onely numeral Figures and the other but Cyphers to make them Omnibus numeris absoluti Nevertheless the Canon still remains the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lord s the King never gave them the Keys and as Bishops the Canon did not yet as under the joynt Title of Lord-Bishops they hold themselves priviledged to get what power they can Two things they reach at viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiastical The Common Law would never yield this some Statutes in some Cases did pretend First As touching Imprisonment the Statute of Henry the Fourth concerning Heresie doth lisp some such power of what force the same Statute is hath been already observed In case of incontinency of Church-men it is more directly given them by a Statute in Henry the Seventh's time before which time the Statute it self doth intimate that an Action did lie against them for such Imprisonment which Law also was made useless by another in Henry the Eighth's time who gave a way to Statutes for the punishing them at the Common Law. First with Death which continued for some Moneths and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a Law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the Fourth formerly mentioned although till Trial the same was bailable And thus continued till the time of Edward the Sixth But as touching Excommunication it was to no purpose for them to struggle the Common Law would never permit them to hold possession quietly but did examine their Authority granted Prohibition enjoyned the Ordinary to grant Absolution where it saw cause Nevertheless in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the â—evying of Tenths In the next place the Prelacy had not this Ecclesiastical Jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not onely to Bishops but to Chancellors Vicars general Commissaries being Doctors of the Law and not within holy Orders and limiting their Jurisdiction in cases concerning the Papal Jurisdiction and their manner of sending their Process and Citations to draw men from their proper Diocess and also their inordinate Fees in Cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine Right and lived they cared not by what wrong But the Laity enclining too much to the new Religion as then it was termed refused to yield one foot unto their pretentions And so like two Horses tied together by their Bits they endeavour after several courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a Horseman that neither of them could unhorse him till Death laid him on the ground And thus was the Roman Eagle deplumed every Bird had its own Feather the great men the Honours and Priviledges the meaner men the Profits and so an end to Annates Legatine levies Peter-pence Mortuaries Monasteries and all that Retinue the vast expences by Bulls and Appeals to Rome to all the cares expences and toil in attendance on the Roman Chair The beginning of all the happiness of England CHAP. XXXI Of Judicature THese two Kings were men of towring Spirits liked not to see others upon the Wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the Eighth whose motion was more eager and there was no coming nigh to him but for such as were of his own train and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice than the Nobility had Both the Kings loved the air of profit passing well but the latter was not so well breathed and therefore had more to do with Courts which had the face of Justice but behind were for the Kings Revenue Such were the Court of Requests of mean Original mean Education yet by continuance attained to a high growth The Court of Tenths and first-Fruits The Court of Surveyors The Court of the Lord Steward of the Houshold The Court of Commission before the Admiral The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard And that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the loss of that grand Liberty of that Country formerly a Province belonging to this Nation and now by Henry the Eighth incorporated into the same and made a Member thereof and brought under the same Fundamental Law a work that had now been long a doing and from the time of Edward the Third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crown Then upon occasion of their Rebellion by loss of many of their wonted Liberberties Afterwards Henry the Eighth defaced the bounds of divers the ancient Counties and setled them anew and the bounds of the Marches also and appointed Pleas in Courts of Judicature to be holden in the English Tongue And last of all re-united them again to the English Nation giving them vote in Parliament as other parcel of the English Dominions had True it is that from their
Advertisement THis Book at its first Publishing which was shortly after the Death of King Charles the First had the ill fortune to be coldly received in the world by reason of the Circumstances of those times but after K. Charles the Second was possest of the Crown and endeavoured to advance the Prerogative beyond its just bounds the Book began to be much enquired after and lookt into by many Learned Men who were not willing to part easily with their Birth-Rights so that in a short time it became very scarce and was sold at a great rate this occasion'd the private Reprinting of it in the year 1672 which as soon as the Government perceived they Prosecuted both the Publisher and the Book so violently that many hundreds of the Books were seized and burnt that and the great want of the Book since occasioned the Reprinting of it without any Alterations or Omissions in the year 1682 when the Press was at liberty by reason of the ceasing of the Act for Printing but Prerogative then getting above the Law it met with a new Persecution and the Publisher was Indicted for the Reprinting of it the passages in it upon which the Indictment was found were these Part II. Page 76. beginning Line the 24th thus I do easily grant that Kings have many occasions and opportunities to beguile their people yet can they do nothing as Kings but what of Right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statute Laws of this Realm might take place And Part II. Page 148. Line 32. And though Kings may be Chief Commanders yet they are not the Chief Rulers The Prosecution went on so rigorously that the Publisher tho' beyond the Seas yet willing to try the Cause appeared according to the constant practice of the Court of King's-Bench by his Attorney but for not being personally present in the Court which was then impossible he was by the Arbitrary Power of the then Lord Chief Justice Jefferys Out-Law'd for a Misdemeanour and so remain'd till this wonderful Revolution by the wise Conduct of his Highness the Prince of Orange The Books have been ever since with care and charge preserved for the benefit of all that are willing to know and maintain their Antient Laws and Birth-Rights It was well known to and owned by the late Lord Chief Justice Vaughan who was one of the Executors of the Great and Learned Mr. Selden that the Ground-work was his upon which Mr. Bacon raised this Superstructure which hath been and is so well esteem'd that it is now again made publick by January the 10th 1688-9 John Starkey AN Historical and Political DISCOURSE OF THE Laws Government OF ENGLAND FROM The FIRST TIMES to the End of the Reign of QUEEN ELIZABETH WITH A VINDICATION of the ANCIENT WAY of Parliaments in England Collected from some Manuscript Notes of John Selden Esq by Nathaniel Bacon of Grays Inn Esquire LONDON Printed for John Starkey And are to be Sold by J. Robinson at the Golden Lyon in St. Pauls Church-Yard R. Bentley in Russel-Street in Covent-Garden Jacob Tonson at the Judges Head in Chancery-Lane T. Goodwin at the Maiden Head in Fleetstreet and T. Fox at the Angel in Westminster-Hall 1689. AN HISTORICAL and POLITICAL DISCOURSE OF THE Laws Government OF ENGLAND The FIRST PART From the FIRST TIMES till the REIGN OF EDWARD III. LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII Advertisement A Private Debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conquerour so called first occasioned this Discourse Herein I have necessarily fall'n upon the Antiquity and Vniformity of the Government of this Nation It being cleared may also serve as an Idea for them to consider who do mind the restitution of this shattered Frame of Policy for as in all other Cures so in that of a distempered Government the Original Constitution of the Body is not lightly to be regarded and the contemplation of the Proportions and manners of the Nation in a small Model brings no less furtherance to the right apprehension of the true nature thereof besides the delight than the perusing of a Map doth to the Traveller after a long and tedious travel I propound not this Discourse as a Patern drawn up to the life of the thing nor the thing it self as a Master-piece for future Ages for well I know that Commonwealths in their minority want not onely perfection of Strength and Beauty but also of Parts and Proportion especially seeing that their full age attaineth no further growth than to a mixture of divers Forms in one Ambition hath done much by Discourse and Action to bring forth Absolute Monarchy out of the Womb of Notion but yet like that of the Philosopher's Stone the issue is but wind and the end misery to the undertakers And therefore more than probable it is that the utmost perfection of this Nether-worlds best Government consists in the upholding of a due proportion of several Interests compounded into one temperature He that knoweth the secrets of all Mens Hearts doth know that my aim in this Discourse is neither at Scepter or Crosier nor after Popular Dotage but that Justice and Truth may moderate in all This is a Vessel I confess ill and weakly built yet doth it adventure into the vast Ocean of your Censures Gentlemen who are Antiquaries Lawyers and Historians any one of whom might have steered in this course much better than my self Had my own credit been the fraight I must have expected nothing less than wrack and loss of all but the main design of this Voyage being for discovery of the true nature of this Government to common view I shall ever account your just Censures and Contradictions especially published with their grounds to be my most happy return and as a Crown to this Work And that my labour hath its full reward if others taking advantage by my imperfections shall beautifie England with a more perfect and lively Character THE CONTENTS Of the FIRST PART CHAP. I. Of the Britons and their Government page 1 II. Concerning the Conversion of the Britons into the Faith. 2 III. Of the entry of the Romans into Britain and the State thereof during their continuance 3 IV. Of the entry of the Saxons and their manner of Government 8 V. Of Austin's coming to the Saxons in England his Entertainment and Work. 11 VI. Of the imbodying of Prelacy into the Government of this Kingdom 13 VII Of Metropolitans in the Saxons time 15 VIII Of the Saxon Bishops 16 IX Of the Saxon Presbyters 17 X. Of inferiour Church-Officers amongst the Saxons 18 XI Of Church-mens maintenance amongst the Saxons ibid. XII Of the several Precincts or Jurisdictions of Church-Governours amongst the Saxons 22 XIII Of the manner of the Prelates Government of the Saxon Church 23 XIV Of Causes Ecclesiastical 24 XV.
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless 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 Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels 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 aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
to glance at the various Aspects of the ancient upon the modern that so these divers Princes and wise Councils in their different course may appear to be no other than the instruments of him that is but one and of one mind whose goings forth have been in a continual course of Wisdom and Goodness for our selves in these latter days And herein I am encouraged because I am not in danger of temptation to Flattery or Spleen nor pinched with Penury of grounds of observation having to do with a Nation than which a clearer mirour of Gods gracious Government is not to be found amongst all the Nations and People under Heaven A TABLE Of the PRINCIPAL MATTERS contained IN THE FIRST PART of this BOOK ABbots page 142 Abbey quarter 151. not taxed or visited from forrein parts 152 Vacancies ibid. Purveyance ibid. Abere murder amongst the Saxons 62 Accolites amongst the Saxons 18 Accusation witnesses amongst the Saxons 94 Action amongst the Saxons 53 Acquittal vide Knight-service Administration vide Intestate Adultery amongst the Saxons 26 Amongst the Normans 88 After 145 Advowsons cognizance 111 Aedeling 33 Age vide Infancy Aids after the Norman times 125 173 178 Alderman 33 Alienations license 114 171 Allegiance according to the Saxons 53 The Normans 94 Amercements 163 Apostacy punished by the Saxons 25 After 121 Appeals amongst the Saxons 53 The Normans 94 After 171 Appeals to Rome 110 Setled 111 To Ecclesiastical Courts ibid. Archbishops vide Metropolitans Arrays 191 c. Arms assessment 128 Vide Arrays Austin the Monk his coming and his Actions 11 c. B. BAil 122 21 158 c. 182 Barks vide Bridges Baron vide Court. Bargain and sale of Goods amongst the Saxons 67 The Normans 82 Barons Wars 221 c. Bastardy amongst the Saxons 26 Battle trial amongst the Saxons 56 Batteries punished by the Saxons 62 120 Bigamists 91 Bishops amongst the Saxons 16 Vide Prelacy amongst the Normans their power encreased 77 c. Vide Elections their Oath to the Pope 115 Blasphemy punished by the Saxons 25 61 Amongst the Normans 86 Bloudshed vide Manslaughter Bridges 164 Britons their Religion and Government 1 c. Conversion 2 Instructed in Learning 4 A Province ibid. The last that submitted to the Papalty and the first that shook it off 13 Burgage amongst the Saxons 51 Burghbote ibid. Burglary punished by the Saxons 63 Burning of Woods punished by the Saxons ibid. Vide 121 Burroughs Mag. Chart. Burroughs English 66 C. CAnon-Law 75 Vide Prelacy Carriages 165 166 Castles their use 73 165 c. Abuse 104 Occasion of the first Civil Wars 130 Castles-guard vide Mag. Chart. 166 De Cautione admittenda 113 Chancery 178 Chancemedley 179 Church maintenance by the Saxons 18 c. Franchise 44 Alienation 115 Reparation 146 Church-men Action 183 184 Discharged from Torns 183 Purveyance 17 143 Their complaints 141 147 Priviledged from distress 150 Cricksceat amongst the Saxons 19 Normans 86 Vide First-fruits Circuits 120 Citation 113 151 242 Clerks trial 116 143 151 Killers of Clerks 116 Comites ex plebe 35 Common-pleas setled 162 Commutation vide Articuli Cleri Compurgators amongst the Saxons 56 Confession sacred 150 Constitutions at Clarindon 111 De Consimili casu 178 Conveyance vide Deeds Copy-hold vide Mannor Coroners amongst the Saxons 41 179 Corporations 48 c. 78 Coverfew 102 Councils general vide Synods Council of Lords amongst the Saxons 33 Vide Lords Counties Courts amongst the Saxons 41 Normans 82 131 After 172 179 285 Court Baron amongst the Saxons 48 Crown-pleas Mag. Chart. 164 Courtesie of England in the Saxons time 65 Custodes pagani amongst the Saxons 35 D. DAne-guelt 102 Released 118 Darreign presentment Mag. Chart. 163 Deacons 18 Deaneries amongst the Saxons 23 Debt to the King satisfaction 160 Debt to the King Mag. Chart. Decenâ—â— amongst the Saxons 43 Normans 83 Deeds among the Saxons 67 Defamation 146 149 Departure beyond Sea without license 112 Diocesses amongst the Saxons 23 Distress in the Normans time 89 Mag. Charta 161 c. Vide County-court Disseisin vide Redisseisin Novel-disseisin Dower in the Saxon time 64 Norman times 91 160. E. ECclesiastical cognizance and power 109 c. 80 127 Vide Stat Circumspecte agatis Articuli Cleri Ederbrece amongst the Saxons 63 Edward the first 133 Edward the Second 35 Elections 75 112 144 151 Elegit amongst the Saxons 59 Englishire a Saxon Law 62 Errour vide Appeals Escheats 167 Vide Forfeiture Felony Escuage Mag. Charta 173 c. Excommunication in the Saxons time 59 Normans 80 After the Normans time 113 Excommunicato deliberando 150 Excommunicato capiendo 151 182 Execution in the Saxon time 59 Executors Mag. Charta Exorcists 18 F. FAirs in the Norman time 89 Fauxonry 120 122 Feast-days Norman Law 87 Felonies and Felons punishment and forfeiture 94 121 167 Concealment 181 Defamed ibid. Feorme or Farm amongst the Saxons 47 Fightwit amongst the Saxons 62 Fine by the Normans 94 175 c. Folkmote vide County-court Fools and Ideots amongst the Normans 93 After 175 Forein Councils 130 132 137 Fornication vide Adultery Forests amonst the Saxons 51 Franchises 42 Frankpledge amongst the Saxons 78 Vide View Freemen of the Saxons 34 Normans 84 After 117 169 Frithbrech amongst the Saxons 62 Fugam fecit 53 Fugitives 167 G. GAvel-kind amongst the Saxons 66 Normans 100 Glebe amongst the Saxons 20 Goods found Saxon Law 68 Norman 89 Sale ibid. Grithbrech vide Frithbrech H. HAbendum Saxon 67 Hamsockne Saxon 63 Heresie punished by the Saxons 24 Normans 86 After 121 Haubergettum Haubertum Halbargellum what it is 194 Heretock Saxon 33 Henry the First 74 Henry the Second 104 Henry the Third 129 c. Shifts for Money 130 Forein Councils 132 Yields up his interest in the Militia to the Lords ibid. c. Heordpeny vide Peter-pence High-ways priviledge 190 Hundred and the Court Saxon 42 Norman 83 Hundred Setena Saxon 43 I. IDolatry punished by the Saxons 60 Normans 86 Vide Blasphemy Imprisonment Saxons 62 Norman 94 Incest punished by the Saxons 62 Indictment Saxon Law 53 Infancy amongst the Saxons 55 After 123 Infangtheoff Saxon 46 Inheritance Saxons 62 Normans 100 After 122 c. Inquest Saxon 56 Interdict in the Saxon time 24 After 113 Intent punished by the Normans 94 Intestate Saxon Law 68 Norman 89 Afterward 144 c. 165 c. John 106 Judgement vide Execution Judges vide Justice Judicatory 118 c. Jury grand petit amongst the Saxons 56 Justice and their Courts amongst the Saxons 52 Chief Justice 119 Judges or Justices itinerant after the Normans 120 124 177 K. KIngs amongst the Saxons election continuance covenant maintenance power in Church matters 22 c. 35 Amongst the Normans election 70 c. Covenant 72 c. Power in Church-matters 77 c. In the times of Stephen Henry the Second Richard the First and John Election 103 Power in Church-matters 109 c. In the time of Henry the Third
Walls and Castles and for the former by setling a Magistracy peculiar to that place or Township not as so many Decenners but as one body consisting of many members And thus by custom they grew to be Fraternities or Corporations under one Magistrate or Head whom they called Alderman and held a Court of Justice at the first holden twice a year which was in nature of a Leet with a view of Frank-pledge as may appear in the cases of Dorchester Circester and Doncaster in Alfred's time and herewith they had publick Markets which served them for their better conveniencies This priviledge of Market was a liberty of publick sale and trade in Commodities that principally concern the Belly but by common course became a pass for Commodities of every kind almost Concerning this liberty I shall desire leave to interpose this Parenthesis ensuing before I proceed in the intended discourse In the first times as every man by common right had property in his own Goods so by the same right he had power to alien to any person at any time in any place by gift sale exchange or other ways and that by such Alienation but especially by sale a Right was vested in the Buyer against all men saving the Eigne-right which was recompenced upon warranty and recovery in value And in those days common sense taught men to buy or sell of or to the next Neighbour that would bargain with them and for want of such occasion to repair to the next Assembly 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 less and this made the Neighbourhood of those Towns to repair thither to buy as others to sell. But time discovering a double inconveniency herein viz. that by these less publick 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 prejudicial to the Publick that the greater Towns appointed for the strength and defence of the Kingdom became ill provided with supply of Victuals either for the present or future and what was had for the most part was gotten at the second hand and higher rate than the Country-Villages had The wise men by publick Edict laid a restraint of Markets in smaller Villages and more private places and thus the greater Towns having Markets formerly became more publick 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 publick defence This Restraint upon the reasons aforesaid was made first in the Saxon-times as may appear by their Laws but more cleerly declared and confirmed afterwards by the Laws of the Normans which never gave any new Right of Market-overt unto those places of publick 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 took leave to abolish that Restraint which did lie upon some of those more private places for certain 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 self cast upon those greater Towns being the very Limbs of the Kingdom without wrong done to the common Right and the publick 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 is to be concluded that the ancient Burroughs of this Kingdom properly do 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 than on any of the smaller Villages and 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 than 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 publick administration had for their better support and safety liberty of Fortification and power to charge one another with the maintenance of the 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 Forests BEsides other Prerogatives of the Saxon Kings they had also a Franchise for wild Beasts for the Chase which we commonly call Forest being a precinct of ground neither parcel of the County nor the Diocess nor of the Kingdom but rather appendant thereunto This savoured of the old German sport but by custom 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 Farm as well as themselves their own People nevertheless so multiplied 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 than for any likelihood of good Neighbourhood For as Nature taught Beasts to prey for themselves so men to defend their own and this bred such a fewd between Beasts and men as that Kings doubting to lose their Game took in with the weaker that the world might see the happiness of England where Beasts enjoy their liberty 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 and to preserve the Kings liberty of Forest co-incident therewith had not the King employed 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
and being trained up even from the Cradle in the English garb moralized by Learning and now admitted into the Throne found it the wisest course to apply himself to the rule of an English King viz. To win and maintain the good opinion of the people by consorting together with them under one Law and pledging himself thereto by taking unto Wife one of the English Blood-royal by this means he refeised and reassumed the English in partnership with the Norman in their ancient right of Government and reconciled the minds of the people under a lively hope of enjoying a setled Government Nor were they greatly deceived herein for his course was less planetary than that of either of his predecessors and yet we find little said of his parley with his people in a Parliamentary way although more of his Laws than of any of his predecessors The reason will rest in this that the Writers of those times touch more upon matters of ordinary than political observation and regarded rather the thing than the place or manner how The Laws therefore although they are not entituled as made in Parliament yet in the continuation of the History of Bede it is noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae which may give sufficient cause to suppose that he declined not the ancient way no more than he did the ancient Law. CHAP. XLVII Of the Franchise of the Church in the Normans time THE Canon-Law that ever since Austin's coming like Thunder rumbled in the Clouds now breaks forth with confusion to all opposers It had formerly made many fair proffers of service to this Island but it was disaccepted as too stately to serve yet by often courtesies received it was allowed as a Friend afar off For the vast body of the Roman Empire like a body wasting with age died upward and left the Britains to their own Laws before the second Beast was grown which being young was nourished under the Imperial Law of the first Beast till it grew as strong as its Dam and began to prey for it self The Empire perceiving its grey hairs and the youthful courage of this Upstart was glad to enter mutual League with it That to maintain the Ecclesiastical Monarchy and This again to support the Imperial and so became the Canon and Imperial Law to be united and the Professours to be utriusque juris But this parity continued not long the young Beast looked like a Lamb but spake like a Lion and contrarily the Eagle had cast its Feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon-Law above the Imperial yet allowing it to serve the turn And so the Professours of both Laws became Students in the Civil but Practisers of the Canon This Composition thus made beyond the Seas the great work was how to transport it over into this Isle for the Emperour could entitle the Pope to no power here because none he had Austin the Monk undertakes the work he offers it to the Britains under the goodly Title of Universal Bishop but they kept themselves out of Canon-shot The Saxons allowed the Title but liked not the power the Monk observed the stop and left time to work out that which present cunning could not being content for the present that a League of Cohabitation should be made between the two Swords though the spiritual were for the present underling not despairing that it would work out its own way over the Saxon Law as it had done over the Imperial Nor did his conceit altogether fail for the Saxons by little allowed much and the Danes more although the main was preserved until the Normans came upon the Stage who made their way by the Pope's lieve and gave him a colour of somewhat more than ever any of their Saxon predecessors had done and to gain the more quiet possession of the Crown to themselves allowed the Pope the honour of their Council learned to draw the Conveyance which as some think was made advantageously for the Pope himself in point of tenure but more probably in the Covenants For the Conquerour was scarce setled in his seat but the Canon-Law began to speak in the voice of a Royal Law First complaining of misgovernment as if the Church were extremely wronged by having the same way and Law of Tryal with the Commons of England and then propounds four several Expedients enough to have undone the whole Commonwealth in the very entrance had not the superstition of those times blinded both Parliament and People and rendred them willing to that which their successours in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon Law Church-matters had the preheminence both in the Hundred and in the County and it was the Bishop's duty to joyn with the Sheriff in those Courts to direct and see to the administration of Justice and yet the Canon had been above three hundred years foregoing in the Negative No Case concerning the Regiment of Souls shall be brought before the Secular Judge The Regiment of Souls was a common place sufficient to contain any thing that was in order thereunto and so every one that hath a Soul must be no more responsible unto the temporal Judge for any matter concerning it but unto the Ecclesiastical power And this not onely in case of scandal as against the moral Law or rule of Faith but for disobedience done to the Canons made afar off concerning any gesture or garb that may come within the savour of an Ecclesiastical conceit That all Delinquents against the Bishops Laws shall answer the Fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute-Law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the tryal of such matters shall be according to the Law of the Canon and not according to that of the Hundred That is not by Jury but by Witnesses in a clandestine way if the Bishop please or without any Accuser or by more scrutiny or any other way that may reserve the Lay-man to the breast of a prepossessed spirit of the spiritual Judge And thus the poor Country-man is exposed to the censure of an unknown Law in an unknown Tongue by an unknown way wherein they had no footing but by an implicit Faith. And herein the providence of God I imagine was more manifest than the wisdom of Man which was too weak to foresee events at so great a distance for questionless it was a point of excellent wisdom for the people now under a King of a rugged nature that would not stick to catch whatsoever he could get to deposit part of their Liberties into
the Canon Robbery is finable The different Law between the Saxons Angles and Danes now by the Normans is setled in the more merciful way and in case the delinquent made flight the pledge satisfied the Law for him But in the latter times of Henry the first the Law was again reduced to the punishment of this crime by death and so hath continued There shall be true weights and measures throughout the Kingdom and those shall be sealed And this was the constant Saxon Law. Perjury to be punished by fine and as formerly still inquirable amongst the Crown-pleas CHAP. LI. The like of Laws that concern common interest of Goods IF Cattle be taken by Distress the party that will replevy them shall pay for the return of the Cattle and give security to bring the Distress into the Court if with within a year and a day it be demanded This Law I take to be intended where the Cattle are taken damage feasant because nothing shall release the Distress in other cases but obedience to the Summons No Distress ad comparendum shall be taken but after three several Summons and so many defaults made and in such case Distress shall issue by especial order from the county-County-court I noted this partly to shew the difference of the Normans from the Saxons in the delay of execution of Justice by so much mean process and partly to shew the difference between the Norman times and these days wherein mens Cattle lie open to the distress of every oppressing or extorting Bayliff or unknown person and no Summons made at all whereby many poor mens Estates are either undone or they must submit to the unjust demands of their adversary No manner of Goods of above four pence in value shall be bought unless in the presence of four Witnesses of the Town And the vendor shall satisfie out of his own Estate if the sale be not effectual and in case the vendor have no warrant for such Goods by him sold. No living Cattle shall be sold but onely in Cities and before three Witnesses nor shall any thing forbidden be sold without Warranty No Fairs or Markets shall be holden but onely in Cities Boroughs Wall'd-Towns and Castles These Laws concerning sales and Markets were ancient Saxon Laws and tend all to the avoiding of cheating men of their Cattle by surreptitious sale of them made by such as had no right Goods found shall be published by the Finder to the Neighbourhood and if any makes claim and proof of them to be his he shall have them giving security to bring them into the Court in case any other shall within a year and a day make his claim thereto The Children of persons intestete shall equally divide the Heritage This is in terminis the Saxon Law and therefore concerning it I shall refer to the same formerly recited onely I shall add hereto the Law of Henry the first which may serve as an explanation of the former Any Freeman may devise his Chattels by will and if he die intestate his Wife Children Parents or next kin shall divide the same for his Souls good The first branch whereof was ancient and doubtless in continual use but the iniquity of the Norman rude times was such that the Lords under surmise of arrears or relief would seize all the personal estate after the Tenant's death and so the right of last Wills was swallowed up but this restoreth the power of last Wills into it's place anâ— in case the party died intestate preserveth a kind of nature of descent although they be more personal Nor doth that last clause of the Souls good disanul the same although the words may seem to carry away the benefit to some other hand For the whole matter is left to the discretion of such as are next to the Intestate CHAP. LII Of Laws that concern common interest of Lands THe Laws that concern Lands and peculiarly belonging to the Normans are such as concern principally the tenure of Lands which if duly considered although savoured somewhat of the King yet little of the Conquerour For generally it must be granted that Tenures long before and after this time were as the services ordered according to the Will of the giver in which as the King had the greatest share and he the most publick person of all so were his Donations ordered chiefly to advance the publick service and in this regard the Tenure by Knight service might more principally challenge the King's regard than the regard of all the great men besides But this was not the sore yea rather it was the beauty and strength of the Kingdom and for which the King deserved an honourable name above most of his progenitors who had not so much Land to dispose of as he had and therefore could not advance that service in any proportion equal unto him The sore that caused so many sighs was the incumbrances raised upon this most noble and free service which through the evil of times by this means became the most burdensome and the onely loathed and abhorred service of all the rest I say through the evil of times for it cannot lodge in my thoughts but that in the Norman times the incumbrances were nothing so great as of latter Ages and that much hath been imputed to the Laws of the Conquerour which they never deserved as may appear in these particulars which the Laws of Henry the First have preserved in memory Tenant of the King or other Lord dying his Heir shall pay no other relief than what by Law is due That which by Law is due is set down in the Laws of William the Conquerour The Relief of an Earl. 8 Horses sadled and bridled 4 Helmets 4 Coats of Mail. 4. Shields 4 Spears 4 Swords 4 Chasers 1 Palfray bridled and sadled The Relief of a Baron 4 Horses with Saddles and Bridles 2 Helmets 2 Coats of Mail. 2 Shields 2 Spears 2 Swords 2 Chasers 1 Palfray bridled and sadled The Relief of a Vovasor to his Lord. His best Horse His Helmet His Coat of Mail. His Shield His Spear His Sword. Or if he had no Arms then he was to pay s. 100 The Relief of the Country-man is the best Beast that is in his possession and of him that farmeth his Lands a years rent These are the Reliefs due by Law and now setled in Goods or Arms but afterwards turned into Money and it is likely that the ill customs in the former times did extort both Money and Arms or such sums of Money as they pleased and by the very words of the Law it seems they had brought it to an Arbitrary power to take what they could get and yet all against Law. The Kings Tenant shall advise with the King in marriage of his Daughter Sister Niece or Kinswoman and his Widow in like manner The sence hereof in short is that these might
the Clergy No man shall be appealed by a Woman for the death of any but her own Husband The right of Appeal is grounded upon the greatest interest Now because the Wives interest seemeth wholly to be swallowed up in her Husband therefore she shall have an Appeal of the death of him onely and such also was the Law in Glanvil's time How far this point of interest shall extend to the degrees of Consanguinity the Norman Law formerly hath shewn And against whom Appeals did lie the Statute at Westminister tells us viz. not onely against the principal but also against accessories yet not against them till the principal be attainted And because it was ordinary for men of nought to appeal others in a malicious way it was by another Law established that if the party appealed was acquitted the appealor should not onely render damages but be imprisoned for a year The County-Court shall be holden at the wonted time The Torn shall be holden at the accustomed place twice in the year viz. after Easter and Michaelmas The view of Frank-pledges shall be holden at Michaelmas The Sheriff shall not extort The Sheriff's Courts had now lost somewhat of their Jurisdiction though for time and place they are confirmed statu quo to the end that through uncertainty thereof the suiter might not make defaults and be amerced Yet they lost much of their respect within the compass of these few years by two Laws the one of which made at Merton allowed all suiters to the rural Courts to appear by Proxie or Atturney which it seemeth had power to vote for the Masters in all cases publick and private and did not onely themselves grow into parties and maintenance of Quarrels and so spoiled these Courts of their common Justice but rendred the Freemen ignorant and careless of the common good of the Country and given over to their own private interest And though the corruption of Justice was soon felt and against it a Law was provided viz. That the Sheriff should not allow of such corrupt Attorneys yet this was no cure to the Freemen who were still suffered to wax wanton at home albeit that they were discharged from doing their suit in all other Hundreds but that wherein they dwell The second Law that took away much honour from these Courts was that Law at Marlbridge that discharged the Baronage of England and the Clergie from their attendance at such service and this also opened the door wider to oppression For where greatness is it carrieth therewith honour from the meaner sort and a kind of awe and stop unto the minds of such men that otherwise would riot without restraint and though it might also be said that the pretence of great men in such Courts would oversway the meaner and make strong parties yet it must also be acknowledged that these parties being greater are the fewer and do not so generally corrupt all sorts as the corruption of the meaner sort do It is said by the wise man Where the poor oppress the poor it is like a raging rain that leaves no food The last branch in this Law is an inhibition to the Sheriff from extortion and surely there was great need and much more need than ever now that the Lords and Clergy are absent It was thought that the great occasion of the Sheriff's oppression was from above I mean from the King that raised the values of the Farm of Counties granted to the Sheriffs for in those days Sheriffs gave no accounts as of later times they have done and therefore the Charter of King John between the 17th and 18th Chap. inserteth this Clause Omnes Comitat. Hundred Wapentag Trethingi sint ad antiquas firmas absque ullo incremento exceptis Dominicis Maneriis nostris But this did not work the work although it took away occasion for the humour was fed from within and turned to a sore upon that place that could never be cured to this day Nor could the wisdom of times find other help to keep the same from growing mortal but by scanting the dyet and taking away that power and jurisdiction which formerly it enjoyed The 37th Chapter hath been already noted in the Chapter of the Clergie next foregoing Escuage shall be taxed as was wont in the time of Henry the second The Charter of King John hath superadded hereunto this ensuing provision There shall be no Escuage set in the Kingdom except for the redeeming of the King's person making of his eldest Son a Knight and on marriage of his eldest Daughter and for this there shall be onely reasonable aid And in like manner shall the aids of the City of London be set And for the assessing of Escuage we will summon the Archbishops Bishops Abbots Earls and greater Barons of the Kingdom specially by our several Writs and will cause to be summoned in general by our Sheriffs and Bailiffs all other our Tenants in capite to be at a certain day after Forty days at the least and at a certain place and we will set down the cause in all our Writs And the matter at the day appointed shall proceed according to the counsel of those that shall be present although all that were summoned do not come And we will not allow any man to take aid of his Freemen unless for redemption of his body and making his eldest Son a Knight and on marriage for his eldest Daughter and this shall be a reasonable aid onely Thus far the Charter of King John concerning this point of Tax or Assessment and if the History saith true the Charter of Henry the Third was one and the same with that of King John then either this was not lest out in Henry the Third's Charter in that Historians time or if it was omitted in the original it was supposed to be included in the general words of the Law as being accustomed in times past And then these particulars will be emergent First that the Aids and Escuage in Henry the First 's time were assessed by the same way with that in this Charter of King John for that all the quarrel between the Lords and King John was concerning the Charter of Henry the first which the Lords sware to maintain Secondly that neither Aids nor Escuage were granted or legally taken but by Act of Parliament although the rate of them was setled by common custom according to the quantity of their Fee. Thirdly that some Parliaments in those times as concerning such matters consisted onely of such men as were concerned by way of such charge by reason of their Tenancy for Escuage onely concerned the Tenants by Knight-service and therefore those onely were summoned unto such Parliaments as onely concerned Escuage Nor had the City of London nor the Burgesses right to vote in such cases it is said p. 258. And thus the Forest-Laws that were made in the time of
concerning Calvin's Case fol. 45 IX Of Courts for Causes criminal with their Laws fol. 54 X. Of the course of Civil Justice during these times fol. 56 XI Of the Militia in these times fol. 58 XII Of the Peace fol. 62 XIII A view of the summary courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns fol. 68 XIV Of the Parliament during the Reigns of these several Kings fol. 75 XV. Of the Custos or Protector Regni fol. 79 XVI Concerning the Privy Council fol. 83 XVII Of the Clergie and Church-government during these times fol. 86 XVIII Of the Court of Chancery fol. 95 XIX Of the Courts of Common-pleas and Common Law. fol. 97 XX. Concerning Sheriffs fol. 98 XXI Of Justices and Laws concerning the Peace fol. 99 XXII Of the Militia during these times fol. 102 XXIII A short Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third fol. 106 XXIV Of the Government in relation to the Parliament f. 109 XXV Of the condition of the Clergie fol. 112 XXVI A short sum of the Reigns of Henry the Seventh and Henry the Eighth fol. 113 XXVII Of the condition of the Crown fol. 118 XXVIII Of the condition of the Parliament in these times fol. 130 XXIX Of the power of the Clergie in the Convocation f. 134 XXX Of the power of the Clergie in their ordinary Jurisdiction fol. 136 XXXI Of Judicature fol. 141 XXXII Of the Militia fol. 143 XXXIII Of the Peace fol. 148 XXXIV Of the general Government of Edward the Sixth Queen Mary and Queen Elizabeth fol. 152 XXXV Of the Supream power during these times fol. 157 XXXVI Of the power of the Parliament during these times fol. 162 XXXVII Of the Jurisdiction Ecclesiastical during these last times fol. 166 XXXVIII Of the Militia in these later times fol. 168 XXXIX Of the Peace fol. 173 XL. A summary Conclusion of the whole matter fol. 174. THE CONTINUATION OF AN Historical and Political Discourse OF THE Laws Government OF ENGLAND THE former times since the Norman entry like a rugged Sea by cross Winds of Arbitrary Vapours in and about the Crown and by Forrein Engagements from the holy Chair made the true face of affairs cloudy and troublesome both for the Writer and the Reader Henceforward for the space of Three hundred years next ensuing Kings by experience and observation finding themselves unequal to the double chace of absolute Supremacy over the sturdy Laity and encroaching Clergie you will observe to lay aside their pretensions against the Peoples Liberties and more intentively to trench upon the Spiritualty now grown to defie all Government but that of Covetousness Nor would these times allow further advantage to Kings in this work they being either fainted by the ticklish Title of the Crown hovering between the two Houses of York and Lancaster or drawn off to forrein employments as matters of greater concernment for the present well-being of the Kingdom or for the spreading of the fame of such as desired to be renowned for valiant men It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiastical men the former Treatise hath already said what was thought needful concerning that For the future I shall even premise this that the ensuing times being thus blessed with a Truce or stricter League between the Kings and Commons the errours in Government more readily do appear the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Laws begins to swell so big that I must be enforced to contract my account of them into a narrower compass and render the same unto the Reader so far forth only as they shall concern the general stream of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For whatever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his Actions yet the Government of a Kingdom is onely manifested by ancient Customs and publick Acts of Parliament And because I have undertaken a general Survey of the Reigns of thirteen several Kings and Queens of this Nation for I shall not exceed the issue of Henry the Eighth and to handle each of them apart will leave the Reader in a Wilderness of particulars hard to comprehend in the general sum I shall therefore reduce them all into three heads viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of York And because Edward the Third and his Grand-child Richard the Second do come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the latter was as different from the former as Lust falls short of a generous Spirit CHAP. I. A sum of the several Reigns of Edward the Third and Richard the Second SEveral I may well call them because they are the most different in their ways and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the lot of his Son Edward the Third a youth of Fifteen years of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should return but being overswayed by Counsels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himself rather than to adventure it in another hand But that is not all for as it is never seen that the Crown doth thrive after divorce from the Scepter but like a blasted Blossom falls off at the next gale of adversity such was the issue to Edward the Second his power once gone his Honour followeth soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleat by his Fathers spoil had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might think by his story to be seldom at home and by his Laws seldom abroad Nor can it be reconciled without wonder that Providence should at once bestow upon England a courageous People brave Captains wise Council and a King that had the endowments of them all Otherwise it had out-reached conceit it self that this small Island wasted by the Barons Wars the people beaten out of heart by all Enemies in the time of the Father should nevertheless in the time of the Son with honour
Judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence And that carries with it a List whereby the power of a King may appear not to be so Supreme in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in case of a particular person where the Law was not formerly known let others judge of the value of this Negative Vote in giving Law to the whole Kingdom It is true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such cases as well as in others yet is it not so originally in them as to be wholly theirs and onely as they shall order it For the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their Liberty and in the speedy execution of Justice as well as they have right to have Justice done And therefore whereas in Cases of Errour and delays the Appeal was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of pleas For remedy hereof a kind of Committee is made of one Bishop two Earls two Barons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had been wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their Liberties so also to be under the Jurisdiction of such Judges and Courts as the Laws in the making whereof themselves challenge a vote do establish and appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befel between the Kings and their people or Houses of Parliament wrought two sad effects viz. A propensity to decline calling of Parliaments so often as was used and expected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historian tells us the Parliament was sometimes enforced to adjourn it self for want of number sufficient The first of these arose from want of good will in the Kings the other from want of Courage and Zeal in the people The first of these was fatal and destructive to good Government for though in distempered Parliaments it is good to withdraw yet in distempered times it is necessary to meet and gain a right understanding of all parties and therefore these times were so happy as to bind themselves by publick Acts of State to re-continue the assembling of Parliaments For the face of the Times represented unto all that agitations were like to be quick violent and to continue for some succession of time It is therefore safe if not necessary that every eye should be open and Councils ready for every occasion A Law at length is agreed upon that A Parliament shall be holden once every year or more if need be But in Thirty years the power of this Law is wasted out of mind and the evil reviving revives also the Statute and yet they had Thirteen or Fourteen Parliaments in Thirty years space and not above Three or but once Four years distance of time between any Two of them in Succession This was the sence of the Members of the Houses in their meeting but at home they had homely conceits and it is found no less difficult to bring them to the meeting than to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affairs of the Publick or their persons to expence and hazard But the publick must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffs likewise that shall neglect return of Summons And the Statute implyeth that it was no introduction of a new Law but a reviving of former Law now or lately disused or a Custom now out of custom And to take away all objection in point of charges and expences another Law was made to establish the Assessments and levying of their wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this That the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well-composed body yet it keeps the same warm and as a Shield is first in all dangers and meets with many a knock which the body feels not this is their work and reward It is true that in the wearing it is felt heavy but it is the easier born if it be duly considered that it is better to be so cloathed than to be naked CHAP. III. Of the Privy-Council and Condition of the Lords THe latter must make way for the former for according to their personal esteem in their own Countries such is their Authority at the Board in joynt Councils And it was one point of happiness in a sad time of War that all men looked one way The Lords were much addicted to the Field and could do much with Edward the Third who was a brave Leader and more with the people who had been so long time used to the rough Trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it is no wonder if domestick designs seemed meaner or more dangerous Thus did God do England a good turn although it was made for the present thereby neither so rich or populous as it might have been in a time of Peace This French heat wasted many a tumultuous Spirit and ennobled the Fame of the King and Lords not onely abroad but won them much Honour and Repute of those that remained at home and so by congregating Homogeneals and severing Heterogeneals rendred the body of the people more Univocal which tended much to the setling of the Joynts of this distracted Nation A timely birth hereof doubtless was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whilst as yet he was but a Child the Princes of the bloud many and they of generous active and
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark and into the main streams And this leadeth on the next consideration viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admiral is as I formerly said a Justice of Peace at Sea maintaining the Peace by power and restoring the Peace by setting an Order unto matters of Difference as well between Foraigners as between the English and Foraigners as may appear by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admiral is the Judge to determine according to Law and Custom Now as subservient unto both these he hath Authority of command over Sea-men and Ships that belong to the State and over all Sea-men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only over the Sea-men serving in the Ships of State but over all other Sea-men to arrest them for the service of the State and if any of them run away without leave from the Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original from whence it is derived namely from the Legislative power of the Parliament and not from the single person of the King or any other Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general interest befalls them all That as they are led by a Law much different from the Courts of Common-Law so are they thereby the more endeared to Kings as being subservient to their Prerogative no less than the Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Original which they say is neither Jus Divinum nor Romanum but that their Lordships power and great possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the positive Law of the Kingdom although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
Indefinite or terminated in the Natural Capacity of the King. And to make a full periodâ— to the point and make the same more clear I shall instance in one Precedent that these times of Edward the Third produced The former English Kings had Title to many Territories in France but Edward the Third had Title to all the Kingdom And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that success that in a little time he â—â—ns the highest seat therein and so brought much honour to the English Nation and more than stood with the safety of the Kingdom For in the union of two Kingdoms it is dangerous for the smaller lest it be swallowed by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the people of England should not be subject to the King or his Heirs as Kings of France Which manifestly importeth that an English King may put himself in such a posture in which Legiance is not due to him and that this posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule an English King. Which if so I suppose this notion of Natural Absolute and Indefinite Legiance to the King in his Natural Capacity is out of this Kingdom if not out of the World and then the foot of the whole Account will be that the Legiance of an Englishman is Originally according to the Laws the sum of all being comprehended in the joynt safety of the people of England CHAP. IX Of Courts for Causes criminal with their Laws THe great growth of Courts founded upon Prerogative derogated much in these times from the Ancient Courts that formerly had attained the Soveraignty over the people and in the hearts of them all This was a hard lesson for them to learn but especially of the King's-Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oyer and Terminer Goal-delivery and Justices of Peace Those of Oyer and Terminer were now grown very common but less esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalf of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full sum made the matter so foul as it became a common grievance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goal-delivery likewise grew more mean and ordinary The chief sort of Men in the several Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance The leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffs Coroners Leets were now grown sowr with Age having attained courses by common practice differing from Oppression onely in Name and yet were the times so unhappy as by these courses they had obtained favour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oyer and Terminer and having learned how to make capital offences pecuniary found-such sweetness as they used not to be weary of their places though the Country grew weary of them and therefore disliking uncertaintes in such matters of benefit they cannot rest till they obtain more certain settlement in their places some for Years others for Life and some for ever The Disease thus contracted by degrees the Cure must be accordingly First the Sheriffwicks much dismembred to please the Court-favourites and fill the Kings privy Purse and all raised to the utmost peny of the full and beyond the just value A Law is made to restore the several Hundreds and Wapentakes to the Sheriffs and their Counties and all of them are reduced to the old Rent And it is likewise provided that none shall execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer damages for injustice by them done And that no Sheriff shall serve in that place above one year and then not to be chosen again for that service till three years be past which latter clause was onely a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their bloud but whom they trusted yet the Sheriff came not so night their skin nor yet so nigh their Free-holds as anciently they had done for that their power in Judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of Justice and his place valuable more than formerly it was holden convenient that such as had the chief power of Judicature at Westminster viz. the Chancellour Treasurer Chief â—aron and the two Chief Justices should nominate the man that should be their Servant and in the Parliament nevertheless they interposed in that Election as often as they saw cause Secondly As touching Causes criminal which more ordinarily come within the cognizance of these Courts They generally held the same regard in the eye of the Law in these times that they had done formerly nevertheless in two crimes these times wrought diversly urging the edge of the Law against the one and abating it as to the other The latter of these is commonly called Petit Treason which is a murther destructive to the Commonwealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families do consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children But by this Law of 25 E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have been as well laid aside as divers others were but that in these times much is to be yielded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable
suit and according to the course of the Admiralty by complaint saving matters of death to the cognizance of the Admiral But this was soon found defective for Justice done in the dark is many times more respective and less respected and therefore within a few years it is provided That Offenders against the Kings Truce upon the Sea or in any of the Ports shall be proceeded against in the Chancery before the Chancellor who hath power given him of calling to his assistance some of the Judges to execute the Statute of 2 H. 5. foregoing by a handsome contrivance For that Statute was once and again suspended for the rigour that was used by the former Conservators who being borderers upon the Sea for their own peace spared as few as they could which had so discouraged the Seamen that the Kingdom had been almost utterly bereaved of its strength at Sea. Nevertheless all this while these Laws were but penal and not remedial for the parties wronged and therefore another Law is made to give the Chancellor and Judges power to make restitution and reparation Thirdly The Chancery gained upon the Ecclesiastical Court. For whereas by the Canon the Church-men were to be judged by their Superiours according to Ecclesiastical and Ordinary Jurisdiction and the iniquity of the times was again returned to that height that Parents could not enjoy their own Children but the little ones were allured stoln away and detained in Cloisters nor did the Church-men afford remedy in such cases A Law was made that upon complaint hereof made to the Chancellor the Provincial should be by him sent for and punished according to his discretion Lastly The Chancery encroached upon the Common Law For whereas the stirs between the two Houses of York and Lancaster began to rise men made their dwellings in places of security and strength Women likewise and other persons flying thither for refuge especially such of them as had most to lose these were contrary to the Law of common honesty urged to engage their Estates unto the desires of such to whom they had fled for refuge and sometimes compelled to marry before they could gain their liberty It was now provided that all such complaints should be heard and determined by the Chancellor Secondly As touching the Ministerial power of the Chancery this likewise was enlarged in making of Process to compel appearance in cases of forcible Entries Murders Manslaughters Robberies Batteries Assemblies in nature of Insurrections Riots and Plunder committed by Servants upon their Masters goods before their Masters death and suchlike offences now grown common and in need of sudden remedy Thus as the work and power of the Chancery grew so did the place and person of the Chancellor grow more considerable raised now from being the Kings Secretary for no better was he in former times to be the Kingdoms Judge and of such trust that although the King might make election of his own Secretary yet the Parliament would first know and allow him that must be trusted with the power over the Estates of so many of the people And therefore did in these times both place and displace him as they saw expedient In a word he is become the Kingdoms Darling and might be more bold with the Common Law than any of his Peers CHAP. XIX Of the Courts of Crown-Pleas and Common Law. AS the Chancery on the one side did swell and increase so was the Kings-bench in an ebb the Council-Table in the Star-Chamber on the one side and the itinerant-Itinerant-Courts in the Country intercepted and drew away much to their own shares making themselves fat the Kings-bench lean and the Rural Courts for Crown-Pleas almost to starve The Crown-Pleas formerly had been determinable in the Kings-bench Gaol-delivery Oyer and Terminer and many of them by Justices of the Peace Coroners and Sheriff The Gaol-delivery was afterwards united to the Judges of Assize and if one of them were a Clergy-man then to the other and chief men of the County This was useful for the Publick but not beneficial for some men and therefore they laboured for Commissions especially directed to parties that they thought would partake but these were found soon to be dangerous soon taken away and the Gaol delivery restored to the Judges of Assize as formerly The Commissions of Oyer and Terminer were sued forth upon extraordinary Emergencies and Offences wherein the State was much concerned for speedy Execution In former times both these and Gaol-deliveries were but rarely had and then granted unto some that perchance knew more of the Case than before-hand was meet to be known Edward the Third amended this Errour and ordered that no Commissions of Oyer and Terminer should issue forth but unto Commissioners named by the Court and not by the party complaining But the Judges of Assize are now on the growing hand both for Honour Use and Power the rather because their persons are of high repute in the Benches at Westminster which are the Master-pieces of Judicature and their Iters are constant and ordinary Nevertheless the Judges of Assize though they have the Gaol-delivery annexed to them yet have they not that absolute power of the Kings-bench but are still under the rule of their Commission which is not alterable but Parliament and which by it was altered by way of adding new powers as new crimes arose that required the eye of the State to provide And so the Judges of Assize by degrees grew to be the ordinary Administrators of Justice throughout the Kingdom yet holding still forth to them a limited power to hear and determine in some Cases but in others onely to enquire and certifie as in the case of false Returns by the Sheriff of persons elected for the Parliament And also in cases concerning the Statutes of Labourers and unlawful Games and Pastimes in which case the Certificate is to be made to the Chancellor And also in cases concerning Liveries contrary to the Statutes wherein the Certificate is to be made to the Kings-bench which power in this last case continued in that manner by the space of thirty years and then by another Statute they had the power to determine such cases before themselves In like manner they had power to hear and determine cases of falshood in counterfeiting and corrupting of Money by washing clipping c. And also defaults committed by Sheriffs Bayliffs and their Officers against the Statutes of Forcible Entries and of wearing of Liveries as aforesaid These were signs of much confidence and trust in them and yet notwithstanding not in these nor in these were the Penalties by Fine left to the Arbitry of the Judges no nor to the Justices of the Kings-bench but were by the very Letter of the Law determined Nor would the Parliament trust these men with doing Justice in the cases aforesaid in their own Counties where they dwelled nor did it think expedient to
allow the Chief Justice of the King-bench unto that service in any of them all but onely once in the County of Lancaster and then onely at the King's pleasure Otherwise it was to be as was used by the space of one hundred years foregoing possibly because his power was too great to be trusted amongst the people Lastly the Judges of Nisi Prius were anciently made by Edward the First by whom also the Assizes were settled at certain times of the year and afterwards by the Statute of York the Nisi Prius in smaller cases was granted before one Justice of the Bench where the Plea dependeth and one substantial man of the County but those of greater concernment were to be had before two Justices of that Bench or in case they were wanting then before Justices of the other Bench or in default of them before the chief Baron if he were a man of Law and in default of that before the Judges of Assize Therefore in those days the Justices of the Benches in their Iters in the Counties were divided in their power some being for Assizes others for Nisi Prius and in some times and cases some were for both For in those times of Edward the Third Judges of Assize had power to enquire in some matters that concerned the Crown or to try Nisi Prius Nor were these powers united till in Henry the Sixth's time Justices of Nisi Prius had the power of Oyer and Terminer annexed to them in all cases of Felony and Treason What was formerly provided by Edward the Third and Richard the Second for instruction to these Judges and to bind them thereto by solemn Oath I shall not particularly mention but shall leave the consideration of the Original of the whole Judicature of this Nation unto the Readers observation upon the premises CHAP. XX. Concerning Sheriffs HEnry the Fourth after a small rest in his Throne though he always sate loose sought after the civil Peace as the corner-stone of his subsistence and that by a way of Justice which found more acceptance with the Vulgar than the common Education of the greater number in these times could promise for the worst of men cannot endure to suffer Injustice though themselves will do it Now because where Kings are reputed to be the Fountain and Life of Justice Sheriffs may be reputed to be the breath thereof and by their Irregularities do render the Government of the King as loathsome as unsavoury breath doth the person whose it is Therefore Henry the Fourth chose rather to be a loser in his Farmâ—â—ts of the Sheriff-wicks than to occasion the Sheriffs to save their bargains by oppression And to this end he took away the course of farming of Sheriff-wicks and made the Sheriffs bare accountants for the Annual profits and as touching the casual profits the Sheriff discharged himself upon Oath This was a good security to the King but yet the People was not herewith satisfied For though the Sheriffs might not take to Farm yet what they had they might let to Farm and then wherein are the people the better for these Laws seeing it is all one for them to be oppressed by the Sheriff immediately as by the Proxy For preventing of this inconvenience another Law is made That the Sheriff shall not let his Bailywick to Farm nor be Non-resident and to this he must bind himself by Oath So as now the Sheriff is double girt and may be fairly ridden without danger to the King or People But men ride Horses for ease and pleasure and he that must bend his mind always to watch his Horses motion will chuse rather to go on foot And therefore Henry the Fifth renewed the Law of Richard the Second that Sheriffs shall be but for one year and then not to be chosen again nor serve for three years next following This Order continued for the space of eight years within which time War and Pestilence had consumed so many of the richer sort of people that a Dispensation is granted that Sheriffs may continue in their places for four years And it was above twenty years after e're the Stock was recruited again after which time the substance of the former Statutes of Edward the Third Richard the Second and 1 Henry the Fifth is revived again with a penalty upon the Sheriff his Deputy or Clerk that shall execute that place above one year So the custom of holding that Office ten or twelve years by occasion of the Dispensation for four years was laid aside But the Cure would never be perfect so long as Sheriffs held by Inheritance for it was easie to find new Deputies but not to lay down old Customs nor could it be lasting unless the penalties also had been annexed to the particular Crimes For a Sheriff before he is a year old by experience formerly had becomes too cunning for all these Laws and therefore Laws are made also against the ordinary corruption of these places such as are extorting of Fees false making of Juries false returns of Writs c. and damages in such cases given to the party wronged and when all is done he is not trusted with taking of Indictments Thus with much ado a Sheriff is made a tolerable Officer and his place by degrees so hedged in that what was in former times hard to pluck up is now become hard to set CHAP. XXI Of Justices and Laws concerning the Peace THE faint Title of Henry the Fourth to the Crown made him ever tender of the Civil Peace without breach whereof he was sure to be quiet in the Throne He undertook not this work by any superlative power from and by himself but useth the help of the Parliament and Laws wherein he was industrious pretending love of Unity amongst his people which nevertheless he liked not unless in order to quiet between himself and them The former way of Justices of Peace he followed close reducing the persons to their ancient qualifications The most sufficient persons Inhabitants in the County worth at least twenty pound yearly unless they be Lawyers or such as are Justices in Corporations Nor is the King troubled or trusted with the naming or electing of these men but the Chancellor or the Kings Council so as now by Law the King can neither be Justice nor make Justice Jure proprio but as his interest with the Council is more or less prevalent and that power that first gave it to the Crown the same power took it away or imparted and placed it else where But as touching the Work or Power of the Justices themselves it grew exceedingly much whereof was only of enquiry and to make Certificates as of Heresie Treason Falshood of Sheriffs c. But more of Oyer and Terminer as in case of Watches deceitfulness in Trades as of making Arrow-heads guilding of Metal
tanning of Leather imbasing of Silver selling of Waxen Images and Pictures c. For the superstition of these times was such as these petty Gods were not set at so high a price by the Seller but a higher price by the Buyer The Parliament therefore set a true value of them viz. For the Wax so much as the Wax is worth by weight and but four pence for the godhead So as it seems the Parliament was not very superstitious in their House whatever they were at Church Furthermore the Justices of the Peace had power to punish deceit in Measures Weights Forcible Entries and Detainers In many of which cases the penalty being Fine and Imprisonment became a snare to many of the Justices especially such as were of the greater and higher rank who having Castles of their own under colour of Justice imprisoned Delinquents in their own Castles and ransomed them at their own pleasure which proved a great oppression to the people and occasioned a Law that no Justice should commit any Delinquent to other than the County-Gaol saving Franchises to the Lords Those times are happy when Justice waits not altogether at Court but grows up in the Fields and Justices of Peace as the Kings Arms upon the Royal Mace are terrible onely to the bad and not as they are pictured before an Ale-house-door to invite men to transgress The Laws for the preservation of the peace concern either punishment of Crimes committed or prevention of them from being committed There is a succession of crimes as of Men and Ages because the Scripture tells us that the hearts of all are fashioned alike yet it is with generations as with men some incline to some crimes more than other and that is the reason that the title Treason sometimes is set forth in Folio sometimes in a lesser Volume It is evident is Story that the violent times of Richard the Second had raised the value of that amongst other offences above measure not long before his time his Father had reduced that wild notion of Treason to a certain rule that formerly wandred in a Wilderness of opinions But Henry the Fourth either to save his own stake or to take the people or both reduced it again to the Statute-rule of Edward the Third and made void that Statute of his Predecessors which had made a former Act of Parliament and all the service thereby done Treason The Dimensions of Treason thus clearly limned and declared taught ill-disposed minds to keep out of the Letter and yet to be bold with the Scene Counterfeit Money they durst not yet to diminish the same they thought came not within the Circle and so it became a common grievance till a Law was made That all purposed impairing of Money should be Treason And so the Parliament held forth to all men that they had a power to declare Treason without the bounds of the Statute of Edward the Third The like power it held forth in the time of Henry the Sixth for men knew that Burglary and Robbery were mortal crimes they would no more of that now they devise a way to spoil and prey for themselves and yet neither to rob nor break House To this end they would scatter little Scrolls in writing requiring the party that they intended to prey upon to leave so much money upon such a day at such a place and this was Sub poena of burning the parties House and Goods which many times did ensue upon default made This practice was at once made Treason to prevent the growth of such an evil And the like was done with Robberies and Manslaughters contrary to the Kings Truce and safe-conduct As many or more new Felonies were also now created One was the cutting out of mens Tongues and plucking out of Eyes a strange cruelty And that shewed the extream savageness of those times so much the more intolerable by how much the poor tortured creature could hardly be either Eye or Ear-Witness of the truth of his own wrong A second Felony was the customary of carrying of Wool or Wool-fells out of the Realm to other places except Calis Another Felony concerneth Souldiers which I refer over to the next Chapter The last was Servants plundering their Masters Goods and absenting themselves if upon Proclamation made they appear not this was also made Felony In the next place as touching Forcible Entries and Riots the remedies so often inculcated and new dressed shew plainly the nature of the times These kind of crimes commonly are as the light Skirmishes in the beginning of a War and follow in the Conclusion also as the faintings of a Battle fought till both sides be weary I shall not enter into each particular Statute divers of them being little other than as asseverations annexed to a Sentence to add credit and stir up minding in men that otherwise would soon forget what is said or done The remedies formerly propounded are now resined and made more effectual First In regard of speed which is as necessary in these forces as the stopping of the breaches of Waters in the first act and therefore one Justice of the Peace may proceed upon a holder by force or breaker of the Peace with a Continuando but Riots are looked upon as more dangerous and the first opposition had need be more stiff lest being uneffectual it aggravate the violence and therefore it is required that two Justices and the Sheriff should joyn in the work to carry on the work with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Council or to the Kings Bench if Traverse be made So as though the power of the County be annexed to the Sheriff Jure ordinario to maintain the Peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintain and recover the Peace when it is broken shews more Power but to prevent the breach shews more Wisdom and therefore to all the rest the Wisdom of these Times provideth carefully First For Guards and Watches according to the Statute at Wint. and committed the care thereof to the Justices of the Peace And Secondly Against the gendring of parties for it is commonly seen that such as the admired for excellencies of person are so far idolized of some as that their Gestures Actions and Opinions are observed Tokens of favour though never so small are desired from such and the Idol likes it well gives Points Ribbons it may be Hats and with these men are soon gained to be Servants in the fashion and not long after to be Servants in Action be it War or Treason or any other way This manner of cheat the former times had been too well acquainted with Knights and Esquires are not to be feared in times where the word Lord carries the wonderment away their offences against the Statutes of
these particular Commissioners were appointed for the making of Ecclesiastical Constitutions and the King himself had a power of Episcopofactory without Conge d'eslire They likewise limited the power of Ecclesiastical Courts altered their Process reformed their Censures even that grand Censure of Excommunication it self The like or much more may be said of their deputing power in Civil Affairs as well by enlarging the King's power as in abridging the same For whereas some of the Successors of Henry the Eighth had power by vertue of his Letters◠patents after Twenty four years of age to annul any Act of Parliament by them made before that age in the time of Edward the Sixth notwithstanding the Proviso of that Law and although Edward the Sixth was not then Twelve years old yet the Parliament repealed all and restored to Edward the Sixth onely that power for the time to come but not to any of his Successors And whereas Henry the Eighth had gained to himself and his Successors a Legislative Power by Proclamation the Parliament in Edward the Sixth's time took the same quite away and reduced Proclamations into their former sober posture The like may be observed of the power of the Parliament in ordering the Lives Members and Estates of the People in matters criminal and in making and altering Courts of Justice and bounding their Power altering their Process abridging their Terms for Judicature reforming Errours in pleading amending common Conveyances and Assurance as in passing Fines with Proclamations their course in County Palatine Limitations of Prescription fraudulent Deeds Recoveries by Collusion c. in all which the Crown had no power but in and by the Parliament Many particulars more might be added if the matter so required for the Statutes are more full in these later Times than formerly and may soon lead us beyond a just period in so clear a matter CHAP. XXXVII Of Jurisdiction Ecclesiastical in these last Times IN the general and in relation to the Foreign Jurisdiction of Rome it was like a Child in an Ague under Fits of heat and cold but in it self under the Prelacie still growing in Stature though not in strength Edward the Sixth came in like a Storm that tor◠〈…〉 by the roots yet a Top-root remained intire with the 〈◊〉 bearing shew of a kind of Divinity that though bared of the 〈◊〉 Soil of the Papacy yet transplanted into the new Mould of Royalty soon conveyed a new life which made the Stock still flourish and grow into a better condition than formerly it had Their Legislative Power in matters concerning their own interest though in outward view seeming their own yet was doubly disturbed from the Pope and the King who though many times they opposed one another yet evermore were both of them in opposition to the Church and with the greater bitterness by their own mutual Emulations But now the Church is come under the controle of onely one that joyned with it for their mutual interest as being both of them embarqued in one and the same ship Two things concurred to the furtherance hereof First the Times were tender and scarce able to digest the change of Worship now patronized by Edward the Sixth much less able to digest the change of Government if the same had been undertaken in a different way from what it was formerly Secondly The Times were also dark and few saw the bottom of Prelacie but lodged all the prejudice in the persons that managed that calling And certainly they had the less occasion to doubt of their own judgement therein because Edward the Sixth had the good providence of God to lead him to make use of such men in that place that were meek and holy and themselves attempted in the fire of Persecution and therefore more tenderly affected to others in that condition And these carrying themselves like tender nursing Fathers in their places wrought in the people a good opinion of their places and that Form of Government for their sakes Yet even in those first Times of Reformation somewhat appeared in that very quintessence of Episcopacie in matters of Ceremony and Conformity that might have taught wise men to beware Upon such grounds as these it went well with Episcopacy in these first Times of Reformation but ill with the Church in the issue That Prelacie was a gainer by the change in Henry the Eighth's time hath already appeared and that it still gained may further appear in these ensuing Considerations First Whereas formerly Bishops were regardant both to the Crown and Presbytery for so may the Dean and Chapter be accounted in the point of Election by Conge d'eslire now they are made the birth of the Kings own breath which thing was never deduced from the ancient Right of the Crown saving due honour to the air of the Preface of the Statute for in the best Times it never had more than a power of Investiture But from the necessity of the Times so corrupted that Deans and Chapters generally were of the Roman Spirit and gave little hope of good Elections by themselves Besides the state of Learning and Holiness was now at the low-water mark so as little supply being looked for to begin the work of Reformation from beneath they began above and so it proved but a weak building for the longer time And thus a lesson is left to future Parliaments That in Cases of Reformation they are not to be strictly holden to Rules of Law or Precedent Secondly The Prelates hereby had their Authority confirmed by Act of Parliament and so were now built upon a Foundation that formerly did hang onely upon a pin of power from Rome For Jurisdiction without Authority is but a Dropsie that brings inevitable consumption in the conclusion And thus the Prelacie are inabled to hold Courts without contradiction and directed in their Process who formerly had a good Title to neither in that course that they held the same Thirdly Though their Jurisdiction was defined by the Statutes yet in larger bounds than ever the Statute-Laws formerly noted and in what they claimed power they did it not altogether upon Civil Right but still kept an awful regard to their Persons and Power as under the sway of a Divine Donation and therefore as in those matters to them by the Statute allowed they did proceed in the name and under the Seal of the King so in other things of Collation Institution Induction Orders Excommunication and such like they proceeded in and under their own Name and Seal and which was a Crown to all the rest power is still given to the Archbishop of Canterbury in cases of Faculty and Dispensation to proceed under his own Seal and not the Kings as if it were a power independent upon the Crown and belonging unto the man neither by Statute nor Commission but coming by some secret Influence from the very place it self Although in the clear sense it is no more
the humours of his Servants to keep his head above water but especially after he was chased by the Scots and quite out of breath he calls for help of all but first of the Clergie and bespeaks them with the Ordinance of Articuli Cleri wherein he gives some satisfaction to the complaints formerly mentioned which it seems by Baronius were exhibited in Parliament Ecclesiastical cognizance extendeth unto Tythes Oblations and Mortuaries and to pecuniary recompence In the first times neglect or denial of Church-duties was punished in the King's Court by Fine Afterwards the Bishop was joyned in that Work and the Tythable Goods were seized eight parts whereof were taken to the Lords and the Bishops use by moyeties a ninth part left to the Owner and the tenth to the Church Nor had the Bishops any peculiar Courts of cognizance of causes till the times of the Normans nor as yet in those times had they power to all intents For though it be true that the Roman Tribute of Peter-pence was allowed by the Conquerour's Law to the Bishop's Court yet we find no Law for Tythes and other profits to be recovered by the Ecclesiastical Court till about the end of Henry the second 's Reign or King Steven's time For at a Council at London in Henry the second 's time it was ordained that three Summons in the Pope's name should be made to such as payed not their Tythes and in case they then refused they should be Anathema And after that time in a Council at Oxford under Steven Archbishop of Canterbury it was decreed that the Laity should be entreated first to pay their Tythes and then if necessity require that they should be compelled by Ecclesiastical censure So as their power crept up by degrees in recovering of Church duties as it did in Testamentary matters and at length Henry the third worn and spent with the Barons Wars about his latter end yielded to Boniface the Archbishop his importunate demands and first gave liberty to the Clergie to be their own Judges and yet the Lay-Judges although divers of them were Clergie men did not suddenly forbear till this Law came which gave some satisfaction to the first and fourth Articles of Complaint foregoing Ecclesiastical cognizance extendeth not to a fourth part of the Tythes of any Living nor to pecuniary mulcts for sin saving by way of commutation The Complaint of the Clergie in Henry the third's time was against the King's prohibition in case of Tythes indefinitely for in those times and afterwards in Edward the first 's time the King's Court had the cognizance of all Tythes and therefore in the Statute of West 2. c. 5. the Writ of Indicavit was allowed in case of right of any portion of Tythes yet the Church still gained ground and about or before the death of Edward the first the Temporal Judge had yielded unto the Clergie the cognizance of a portion of Tythes under the value of the fourth part for in the Article next foregoing the Clergies complaint was that the Kings Justices held cognizance of the fourth part and here they were confined thereto by this Law which the Clergie could never remove For violence done to Clerks the offender shall render damage in the Kings Court but Excommunication Penance and Commutation shall be in the Bishops Court. The Canon-Law had an ancient claim to the protection of Clerks both as touching their persons and estates and prevailed so far as they were thereby emboldened to offer violence unto others But as I formerly shewed by a Law in Henry the Second's time the Temporal Judge resumed his original power and this became a sore evil between the Clergie and Laity for though it were allowed that Clerks should not be sued but before the Ecclesiastical Judge in such cases yet it was no warrant for the Laity likewise to be called before the Ecclesiastical Judge in such cases and therefore the Clergies complaints shew that the matter was doubtful and that the Lay-Judge generally maintained his Jurisdiction although sometimes he disclaimed it as it may appear in the case of a Trespass in the nature of a riot committed upon the Priory of St. John's of Jerusalem in the seventh year of Henry the Third when as it was adjudged per Curiam that it belonged to the Ecclesiastical Court to punish But in Edward the First 's time by the Ordinance of Circumspecte agatis and Articles concerning prohibitions the difference was made between damages and pro reformatione and the same affirmed by this Law and so the matter setled and the fourth Article of the Clergies complaint in some measure was satisfied Defamation within Cognizance of the Ecclesiastical Court and corporal penance therefore and Commutation The words are general and peremptory with a non obstante the Kings prohibition and yet the Law afterwards restrained the sence to defamation for crimes or offences triable in the Ecclesiastical Court and this gave further satisfaction to the fourth Article of the Clergies complaint foregoing Tythes of new Mills may be recovered in the Ecclesiastical Court. This Tythe of Mills was a new encroached Tythe never mentioned in any former Law of this Kingdom nor demanded by the Synod at London Anno 1173. which mentions Fruit-Trees young broods of living creatures that are tame Herbage Butter Cheese with other particulars but mentions not new Mills It is true that anciently Mills paid Tythes but such they were which were ancient and had paid the same by custom and such as by Law in the Confessors time were declared to be given a Rege Baronibus populo But by the second Article of the Clergies complaint next foregoing it appears that the Kings Mills refused to pay this Tythe now whether the new Mills were called the Kings Mills as being made upon the publick streams by the Kings license or whether the Mills newly made within the Demesnes of the Crown it is not to be insisted upon but it is evident that till this Law made the new Mills would not Tythe their labours One and the same matter may be tryed at the Common-Law after Sentence in the Spiritual Court in divers respects The great sore that was complained of was that the Clergie after purgation in the Ecclesiastical Court made were proceeded against in the Kings Court in case of breach of peace or Felony as may appear out of the 16th Article of the Clergies first complaints and the 8th Article of that taken out of Baronius Nevertheless the present Law subjoyns an example of the questioning a Lay-man in the Ecclesiastical Court in case of violence done to a Clerk as a matter which may be tryed in the Ecclesiastical Court and yet reviewed by the Kings Court. The Writ de Excommunicato deliberando shall not issue forth but upon evident breach of the Kings Liberty This might be intended in satisfaction of the Tenth Article of the Clergies complaint