the higher nature the party though not the Kings tenant lost his personal estate to the King for ever his free holds also for a yeere and a day after which they returned to the Lord of the soile by way of escheat It seemeth also that the losse not onely of chattels and goods but also of lands c. extended to Outlaries I conceive in case of Felony and the Kings pardon in such case could not bind the Lords right of escheate although it might discharge the goods and the yeere and the day whereunto the King was entituled which case alone sufficiently declareth what power Kings had in the estates of their subjects Manslaughter 5. Manslaughter made not bailable This was law in Henry the seconds time although it crossed the Norman Law Glanvil l. 14. cap. 1 3. and questionlesse it was upon good ground for the times now were not as those in the Conquerours times when shedding of blood was accounted valour and in most cases in order to the publique service And now it seems it was a growing evill and that cried so loud as though in case of Treason baile might be allowed yet not in this case ubi ad terrorem aliter statutum est saith the authour Robbers 6. Robbery shall be committed to the Sheriffe or in his absence to the next Castelane who shall deliver him to the Sheriffe And the Justices shall doe right to them and unto trespassers upon Land Ll. Gul. 4. Spicil 174. By the Conquerours law these offenders were bailable and I conceive this was no repeale thereof and the rather because Glanvile alloweth of pledges in all cases except Manslaughter yea in those crimes that did wound Majesty it selfe Glanvil lib. 14. cap. 1. although they concerne the destruction of the Kings person or sedition in the Kingdome or Army thereof The Justices herein mentioned were intended to be the Justices itinerant and the trespasses upon Land are meant such as are contra pacem Domini Regis as riotous and forcible entries for some trespasses were against the peace of the Sheriffe as formerly hath been observed Fauxonry 7. Fauxonry Glanvil lib. 14 cap. 7. is of severall degrees or kinds some against the King others against other men and of those against the King some are punished as wounds of Majesty as falsifying the Kings charter and whether falsifying of money were in that condition or not I leave or falsifying of measures yet more inferiour I cannot determine but its cleare by Glanvile that falsifying of the deed of a private person was of smaller consideration and at the utmost deserved but losse of member Inheritances may not be aliened 8. Glanvil lib. 7. cap. 1. Ibid. c. 5. Inheritances were in those times of lands or goods for it was the custome then that the personall estate the debts deducted was divisible into three parts one whereof belonged in right to the wife as her reasonable part the other to the heire and third to the testator to make his will of them and of the other two parts he could not dispose by will Concerning Lands it was regularly true that no man could alien his whole inheritance to the disherisin of his heire either by act in his life time or any part thereof by his last will without the concurrance of the heire But of purchased lands he may give part by act executed in his life time though he have no Lands by inheritance and if he hath no issue then he may alien all And where a man hath Lands by inheritance and also by purchase he may alien all his purchased lands as he pleaseth If the lands be holden in Gavel kinde no more of the inheritance can be conveyed to any of the children then their proportionable parts will amount unto This law of inheritance was divers according to the tenure for the lands in Knight-service alwaies discended to the heire but such as were holden in soccage passed according to the custome either to the eldest or to the youngest or to all equally And thus stood the generall state of inheritance from the Normans times hitherto Ll. Hen 1. c. 88. seeming somewhat too strait for the free men that by law of property might challenge a power to doe with their own as they pleased But the Normans saw a double prejudice herein the first was the danger of ruine of many of their families who now ingrafted into the English stocke and yet not fully one might expect a late checke to their preferments from the Saxon parents after a long and faire semblance made of their good will The second prejudice was the decay of their Militia which was maintained by riches more then by multitude of men partly because that rich men are most fearfull of offending and therefore ordinarily are most serviceable both with their bodies and estates against publique dangers and partly because by their friends and allies they bring more ayd unto the publique by ingaging them in the common cause that otherwise might prove unsensible of the condition of their Country The heire of a free man shall by descent be in such seism as 9. his ancester had at the time of his death Vide Glanv l. 7. c 9. doing service and paying releif and shall have his chattailes If the heire be under age the Lord shall have the Wardship for the due time and the wife her Dower and part of the goods If the Lord withhold seisin the Kings Justice shall trie the matter by twelve men The first of these branches is declaratory of a ground of common law but being applied to the last is an introduction of a new law of triall of the heires right by Assize of Mortdancester where formerly no remedy was left to the heire but a Writ of right If these three branches be particularly observed they speake of three sorts of heires of tenants by Knight-service viz. such as are majors or of full age and such as are minors or under age and such as are of a doubtfull age Those that are of full age at the death of their ancestors may possesse the lands descended and the Lord may not disseise him thereof but may be resisted by the heire in the maintenance of his possession so as he be ready to pay reliefe and doe service that is due and if the Lord expell him he shall have remedy by Assize Those heires that are minors shall be under the Lords guardianship till they come to one and twenty yeeres Tbe heires of such as hold by soccage are said to be at full age at fifteene yeeres because at that age they were thought able to doe that service but the sonnes of Burgesses are then said to be of full age when they have ability to mannage their fathers calling such as telling of money measuring of cloath and the like yet doth not Glanvile or any other say that these were their full age to all purposes albeit that some Burroughs at
Charter and other Statutes during the reignes of these Kings SHattered asunder by broiles of Civill wars the free men having laid aside that regard of the ancient mutuall covenant and bond of Decenners are now become weake and almost inthralled to the lust of Kings Lords Pope and English Clergy and therefore it s no wonder if taxes and tributes were many and new although most of them deserved not to march under any banner but the colours of oppression nor did any thing save them from the worst tenure of all but the severall interests of those superiour powers which oftentimes did justle with one another and thereby gave the Commons liberty to take breath so as though for the present they lost ground and hunted upon a coole sent yet they still retained the prey within their view Sometimes they were cast farre behind other times they recovered themselves a truce is cried and laws are made to moderate all and determine the bounds of every one and thus comes the grand Charter into the Publique Theater The Historian saith it was the same with that of King Johns framing and yet by comparing them together we finde them disagreeing both in words and sence and therefore shall sum the same up as shortly as I can observing the difference of the two Charters as I passe along The first Chapter concerned the Church of which sufficient hath been spoken Mag. carta The Free men shall enjoy these liberties to them and their heires for ever cap. 2. The heire in Knightservice shall pay the ancient reliefe cap. 3. That reliefes were setled by the Saxons hath been already shewed and also that they were continued and confirmed by Henry the first onely in those times they were payed in Horses Armes c. but in after times all was turned into money which was more beneficiall for all cap. 4. Vide Stat. de Wardis 28 E. 1 Lords shall have their Wards bodies and Lands after homage received untill the full age though the Ward be formerly Knighted Glanvil lib 6. cap. 1. 4. The Law of Wardship may seem more anciently seated in this Kingdome then the Normans times for if the Statutes of Scotland beare any credit that Law was in Scotland before those times The Lords were not to have the Wardship before they were possessed of the tenure because it was theirs as a fruit of the tenure according to the Saxon law concerning distresse that it could not be in the power of the Lord to distraine till he was possessed of the service Stat. Marlbr cap. 6 7. And if by fraudulent conveyance the heire did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appeare the Lord might seise the Lands unlesse in case of Wardship per cause de guard Stat. Marlbr cap. 16. prerog Reg. cap. 3. And in case the Lord would hold the Wardship longer then the full age of the heire an Assize did lie against the Lord for the heire could not enter without livery But if the heire were of full age at the time of the ancestors death the Lord could not enter the Lands and yet he should have a reliefe and the primer seisin And if the heire entered the Lands before homage done he gained no free hold Prerog Reg. cap. 13. though he were Knighted before as this Law provideth for it may seem that these times of civill warre brought forth a tricke of Knighting betimes as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of warre was good or evill and yet reason might induce a conceit that he that was thought meet to doe Knight service in his own person might expect the maintenance fit for the ability of the person and honour of the service Grantees or their assignes or Committees of Wardships shall preserve the Land c. from waste cap. 5. and the tenants from extortion They shall yeeld up the same stocked if they receive them stocked cap. 6. The first of these is the law of common reason for its contrary to guardianship to destroy that which by their office they ought to preserve As touching the words of the Law the Grantees are omitted in the Charter of King John and also their assignees albeit that doubtlesse they were within the intent and meaning of the Law The matter declares plainly not onely the oppession of Lords upon their Wards but also the corruption even of the law it selfe that at the first aimed at the good of the publique and honour of Knightservice but now was degenerated into the base desire of profit by making market of the Wards estates and marriages that brought in strip and wast of Estates and niggardly neglect of the education and training up of the persons of the Wards and an imbasing of the generation of mankind and spoile of times Nor did these times ever espie or provide against the worst of these but onely endeavoured to save the estate by punishing the wasters in dammages by this law and by forfaiture of the Wardship by a Law made in the time of Edward the first Stat. Gloc. cap. 5. and this as well for waste done during the time of the custody as in the life time of his ancestors by another law in Edward the firsts time Stat. de vasto 20 E. 1. And because the Escheators and their under Officers used to serve themselves out of the estates of minors before they certified to the King his right and those were not within the Law of Magna Carta or at least not so reputed Artic. sup cart cap. 18. It was therefore afterwards provided that these also should render dammages in a Writ of wast to be brought against them The marriage of Wards shall be without disparagement cap. 7. It was an ancient law amongst the Germans and the Saxons brought it hither Tacitus mor. Germ. and as a Law setled it that marriage must be amongst equals but the Danes and Normans sleighted it and yet it continued and was revived Now as the Lord had the tuition of the Ward instead of the ancester so had he the care of the marriage in such manner as the ancester might have had if he had lived For in case the Ward were stolne and married the delinquent suffered fine and imprisonment Or if the ward married without the Lords consent he shall have the double value S at Merton cap. 6. and hold the land over till satisfaction But in case the Lord marrieth the Ward within fourteene yeeres of age to its disparagement cap. 7. he shall lose his Wardship thereby And if the Ward refuseth to accept of a marriage tendred by the Lord before her age of 16 yeeres West 1. c. 22. the Lord shall hold the Lands till he have received the full valew and in case where one tenant holdeth of
sold delayed or denied It s a comprehensive law and made up of many Saxon laws or rather an inforcement of all laws and a remedy against oppression past present and to come and concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the law and his liberty likewise so as he shall be shut into no place by imprisonment nor out of any place by banishment but shall have liberty of ingresse and egresse His estate both reall and personall shall also be under the protection of the Law and the law also shall be free neither denied nor delayed I thinke it needlesse to shew how this was no new law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the summe of all the foregoing discourse tendeth thereto cap. 32. Merchants shall have free and safe passage and trade without unjust taxes as by ancient custome they ought In time of warre such as are of the enemies Countries shall be secured till it appeare how the English Merchants are used in their Countries That this was an ancient law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon laws So as it appeareth that not onely the English free men and natives had their liberties asserted by the law but also forrainers if Merchants had the like liberties for their persons and goods concerning trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the law as the free men had And unto this law the charter of King John added this ensuing It shall be lawfull for every free man to passe freely to and from this Kingdome saving fealty to the King unlesse in time of warre and then also for a short space as may be for the common good excepting prisoners outlaws and those Countrey-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this law of free passage out of the Kingdome was not anciently fundamentall but onely grounded upon reason of State although the free men have liberty of free passage within the Kingdome according to that originall law sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the third as was also another law concerning the Jewes which because it left an influence behind it after the Jewes were extinct in this Nation and which continueth even unto this day I shall incert it in this short summe After death of the Jewes debtor no usury shall be payd during the minority of the heire though the debt shall come into the Kings hand And the debt shall be payd saving to the wife her dower and maintenance for the children according to the quantity of the debtors Land and saving the Lords service and in like manner of debts to others The whole doctrine of usury fell under the title of Jewes for it seemeth it was their trade and their proper trade hitherto Concil Brit. 299. It was first that I met with forbidden at a Legatine Councell nigh 300 yeeres before the Normans times but by the Confessors law it was made penall to Christians to the forfeiture of estate and banishing and therefore the Jewes and all their substance were holden to be in nature of the Kings villeines as touching their estate Ibid. 623. Glanvil lib. 7. cap. 16. for they could get nothing but was at his mercy and Kings did suffer them to continue this trade for their own benefit yet they did regulate it as touching infants as by this law of King John and the Statute at Merton doth appeare M. Paris An. 1229. Merton cap. 5. Stat. de Judais An 18 E. 1. but Henry the third did not put it into his Charter as I thinke because it was no liberty of the subjects but rather a prejudice thereto and therefore Edward the first wholly tooke it away by a Statute made in his time and thereby abolished the Jewes Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly cap. 33. cap. 34. In all alienations of Lands sufficient shall be left for the Lords distresse Prerog Reg. cap. 7. Submitting to the judgement of the learned I conceive that as well in the Saxon times as untill this law any tenant might alien onely part of his lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord paramount other then was formerly due to him without the Lords consent and for the same reason could they not alien the whole tenancy to binde the Lord without his expresse licence saving the opinion in the booke of Assizes 20 ass pl. 17. because no tenant could be inforced upon any Lord least he might be his enemy Neverthelesse it seemeth that de facto tenants did usually alien their whole tenancy and although they could not thereby barre the Lords right yet because the Lord could not in such case have the distresse of his own tenant this law saved so much from alienation as might serve for security of the Lords distresse But tenants were not thus satisfied the Lords would not part with their tenants although the tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all 18 Edw. 1. Westm 3. ca. 1. saving to the Lords their services formerly due and thus the Lords were necessitated to grant licences of alienation to such as the tenants could provide to buy their lands Nor was this so prejudiciall to the Lords in those daies when the publique quiet was setled as it would have been in former times of warre when as the Lords right was maintained more by might and the ayd of his tenants then by law which then was of little power cap. 35. The 35 Chapter I have formerly mentioned in the Chapter concerning the Clergy cap. 36. No man shall be appealed by a woman for the death of any but her own husband The right of appeale is grounded upon the greatest interest Now because the wives interest seemeth wholy to be swallowed up in her husband therefore she shall have an appeale of the death of him onely and such also was the Law in Glanvils time How far this point of interest shall extend to the degrees of consanguinity the Norman Law formerly hath shewen And against whom appeales did lie the Statute at Westminster tels us viz. not onely against the principall West 1. cap. 14 but also against accessories yet not against them till the principall be attainted And because it was ordinary for men of nought to appeale others in a malicious way Westm 2. ca. 13 it was by another law established
there is a much more difference between an Almes and a Tribute then between the King and the people Now that it was an Almes and not a Tribute may appeare for that the originall was a suddaine pang of zeale Vit. Offae 29. conceived and borne in one breath while the King was at Rome and therefore not imposed as a Tribute Secondly it was ex regali munificentia and therefore free Thirdly it was expressely the gift of the King for the Law of St Edward which provideth for the recovery of the arreares of this money Concil Brit. p. 445 â—4â— Concil Brit. p. 621. and enjoyneth that they must be payed to the King and not to Rome as it was in the daies of Canutus and Edgar rendereth the reason thereof to be because it was the Kings Almes Secondly that it was an Almes onely from the King and out of his own Demesnes may seem not improbable because it was ex regali munificentia which could never be affirmed if the gift had been out of the estates of others Secondly it was granted onely out of such houses as yeelded thirty pence rent called vivae pecuniae because in those times rent was payd in Victuall so as it may seem that onely Farmes were charged herewith and not all mens Farmes neither for the generall income will never answer that proportion The particular hereof I shall in briefe set forth It appeareth in the former quotation that Offa charged this leavy upon the inhabitants dwelling in nine severall Diocesses viz. Hereford which contained the City and County adjacent 2. VVorcester containing the Cities and Shires of it and Glocester 3. Lechfield containing VVarwickeshire Cheshire Staffordshire Shropshire and Darbishire 4. Leicester with the County adjacent 5. Lincolne with the County adjacent 6. Dorchester whereto belonged Northamptonshire Buckinghamshire Bedfordshire Huntingtonshire Cantabridgeshire and halfe Hartfordshire 7. London with Essex Middlesex and the other halfe of Hartfordshire 8. Helmham with Norfolke 9. Domuck or Dunwich with Suffolke In which nine Diocesses were two and twenty shires And he further granted it out of Spatinghenshire now Nottingham whose Church belonged to Yorke But in Ethelwolfes time the grant was enlarged and extended into fifteen Diocesses which together with their severall charge out of the English Martyrology I shall particularize Fox Martyr p. 340. as followeth  l. s. d. Cantuar. Dioces 07. 18. 0. London 16. 10. 0. Roffen 05. 12. 0. Norwic. 21. 10. 0. Elienum 05. 00. 0. Lincoln 42. 00. 0. Cistrens 08. 00. 0. VVinton 17. 06. 8. Exon 09. 05. 0. VVigorn 10. 05. 0. Hereford 06. 00. 0. Bathon 12. 05. 0. Latisburgh 17. 00. 0. Coventree 10. 05. 0. Ebor 11. 10. 0.  200. 06. 8. The whole sum whereof not exceeding two hundred pounds six shillings and eight pence will not amount to seven hundred pounds of now currant money if the weight of a penny was not lesse in those times then in the reigne of Edward the first when it was the twentieth part of an ounce and that the twefth part of a pound as by the statute thereof made may appeare Nor can the difference be much if any in regard of the vicinity of the time of this extract to that of the Statute for though no particular date thereof appeare yet it seemeth to be done after the translation of the See from Thetford to Norwich which was done in VVilliam Rufus his time and after the erecting of the Bishoprick of Ely Brit. Antiq. p. 18. which was in the time of Henry the first Now albeit this charge was in future times diversely ordered and changed yet upon this account it will appeare that not above eight and forty thousand and eighty houses were charged in this time of Edward the second with this assessement which is a very small proportion to the number of houses of husbandry in these daies and much more inferiour to the proportion of houses in these times if Polydores observation be true that in the Conquerours time there were sixty thousand Knights fees and as others fifty thousand Parishes It may therefore be rather thought that none but the Kings farmers were charged herewith notwithstanding the positive relations of writers who in this case as in most others wherein the credit of Rome is ingaged spare not to believe lightly and to write largely And thus for their sevenfold Church-officers we have also as many kinds of constant maintenance One in Lands and Tenements and six severall kinds out of the profits and the personall estate besides the emergent benefits of oblations and others formerly mentioned CHAP. XII Of the severall Precincts of Jurisdictions of Church-governours amongst the Saxons THe Church-officers thus called to the Drumme and payd are sent to their severall charges over Provinces Diocesses Deaneryes and Parishes Malms gest Reg. lib. 1. c. 4. as they could be setled by time and occasion Before the Saxons arrivall London had the Metropolitane See or was chiefest in precedency for Archbishops the Britons had none Afterwards by advice of the wise men Canterbury obtained the precedency for the honour of Austin who was there buried The number of Provinces and their severall Metropolitan Sees was first ordered by advice of Pope Gregory Bed hist lib. 1. cap. 29. who appointed two Archbishops in Saxony the one to reside at Canterbury the other at Yorke and that each of them should have twelve Bishops under them but this could never be compleated till Austin was dead as by the Epistle of Kenulphus to Pope Leo appeareth Malmesb. loco citat Nor then had the Pope the whole power herein intailed to his Tripple-Crowne for the same Epistle witnesseth that the councell of the wise men of the Kingdome ruled the case of the Primacy of Canterbury Vit. Offae Malmesb. Concil Brit. 133. Antiq. Brit. Antiq. Brit. p 54. M. Westm An. 775. And Offa the King afterward divided the Province of Canterbury into two Provinces which formerly was but one The Precincts of Diocesses have been altered ordinarily by Kings or the Archbishops and their Synods as the lives of those first Archbishops set forth Theodore had divided his Province into five Diocesses and within a hundred yeeres after Offa we finde it increased unto eleven Diocesses Diocesses have also been subdivided into inferiour Precincts called Denaries or Decanaries the chiefe of which was wont to be a Presbyter of the highest note called Decanus or Archpresbyter Ll. Edw. conf cap. 31. Lindwood l. 1. de constit c. 1. The name was taken from that Precinct of the Lay-power called Decennaries having ten Presbyters under his visit even as the Decenners under their chiefe The smallest precinct was that of the Parish the oversight whereof was the Presbyters work they had Abbeys and other religious houses but these were however regular amongst themselves yet irregular in regard of Church-goverment whereof I treat CHAP. XIII Of the manner of the Prelates government of the Saxon Church HAving
which not onely the people but also the King must submit The like whereunto Ina the great Saxon King also Ll. Inae Lamb. No great man saith he nor any other in the whole Kingdome may abolish the written Laws Kings furthermore bound themselves at their entrance into the Throne hereunto by an oath as it s noted of Canutus unto whom after Aetheldred was dead the Bishops Abbats Dukes Miror cap. 1. sect 2. and other Nobles came and elected him to be their King and sware fealty unto him and he againe sware to them that Secundum Deum secundum seculum c. viz. according to the Lawes of God and of the Nation he would be a faithfull Lord to them Wigortn An. 1016. It s probable I grant that the praecipuum Sacramentum formerly mentioned was in the first nature more personall for the defence of the person of their leader whiles he was their Captain because it much concerned the good of the Army and without whom all must scatter and bring all to ruine and this the words of the Historian doe evidence But the safety of the whole people depended not on him after the warre was done and therefore the oath tied them not any further nor did the safety of the people afterwards when as the Saxons entred this Land so absolutely rest upon the person of the King especially if he proved unfit to mannage the worke and therefore the fealty that the people sware to their King was not so absolutely determined upon their persons otherwise then in order to the publique weale as may appeare from the Lawes of the Confessor who was within thirty yeeres after the reigne of Aethelstan formerly mentioned The words in English run thus All the people in their Folkmote shall confederate themselves as sworn bretheren to defend the Kingdome against strangers and enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulnesse and that within and without the Kingdom of Britaine they will be faithfull to him as to their Lord and King So as t is evident the Saxons fealty to their King was subservient to the publique safty and the publique safety is necessarily dependant upon the liberty of the Lawes Nor was it to be expected that the Saxons would endure a King above this pitch For those parts of Germany whence they came that had the Regiment of Kings which these had not yet used they their Kings in no other manner then as servants of State in sending them as Embassadours and Captaines Tacitus as if they claimed more interest in him then he in them and the Historian saith expresly that amongst those people in Germany that had Kings their Kings had a defined power and were not supra libertatem And this maxime of State became afterwards priviledged by Sanctuary for by the growth of Antichrist not only the Clergy but even their tenants and retainers were exempt from reach of Kings even by their own concession allowed of a Law that cut the throat of their indefined prerogative Ll. Sax. Ed. cap. 17. viz. That if the King defend not his people and especially Church-men from injury nec nomen Regis in eo constabit verum nomen Regis perdit Which Law however it might passe for currant Divinity in those daies yet its strange it should get into a publique act of State Nor was this a dead word M. Westm An. 756 758. Wigorn. An. 755. for the people had formerly a tricke of deposing their Kings when they saw him peep above the ordinary reach and this was an easie work for them to doe where ever neighbouring Princes of their own Nation watched for the windfals of Crowns This made the Monarchicall Crown in this Land to walke circuit into all parts of the Countrey to finde heads fit to weare it selfe untill the Norman times Thirdly the Saxons had so hammered their Kings in their elections and made him so properly their own as they claimed an interest not onely in the person of their Kings but also in their estates so as in some respects they were scarcely sui juris For King Baldred had given the Mannor of Malings in Sussex to Christchurch in Canterbury and because the Lords consented not thereto Concil Brit. 340. it was revoked and King Egbert afterwards made a new grant by advice of the Lords which shewes that the Demesnes of the Crown were holden sacred and not to be disposed of to any other use though pious without the consent of the Lords and herewith concurre all the Saxon infeodations attested and confirmed by Bishops Abbots Dukes and others of the Nobility under their severall hands Neverthelesse Kings were not then like unto plumed Eagles exposed to the charity of the Foules for food but had a royall maintenance suitable to their Majesty their power was double one as a Captaine other as a King the first was first and made way for the second as Captaine their power was to lead the army punish according to demerits and according to laws and reward according to discretion As Captaine they had by ancient custome the whole spoile left to their ordering by permission of the army Tacitus Exigunt Principis liberalitate illum Bellatorem equum illam cruentam victricem frameam and they were not wont in such cases to be close handed per bella raptus munificentiae materia the spoiles in these wasted parts of Germany bring little other then horses and armes But after they came into Britaine the change of soile made them more fat Horses and Armes were turned into Towns Houses Lands and Cattell and these were distributed as spoils amongst the Saxon souldiers by their Generals and this redounded to the maintenance of the State and port of the great men who were wont to be honoured non stipendiis sed muneribus Tacitus and the people used ultro viritum conferre principibus vel armentorum vel frugum aliquid but now upon the distribution of conquered Towns Houses Lands and Cattell in Britaine a yeerly product of victuals or other service was reserved and allowed to the Saxon kings by the people as the people allowed to Joshua his Land Jos 19.49 so as they needed no longer the former course of Offerings but had enough to maintaine their Royall port and great superfluity of Demesnes besides as their charity to the Church men does sufficiently evidence and by this meanes all the Lands in England became mediately or immediately holden of the Crown and a setled maintenance annexed to the same besides the casuall profits upon emergencies or perquisites of fellons or fugitives goods mines of Gold and Silver treasure trove mulcts for offences Miror 101 298 Ll. Edw. cap. 14 and other priviledges which being originally in the kings were by them granted and made Royalties in the hands of subjects as at this day To the increase of Majesty and maintenance there was an
forefathers recepitque satisfactionem universa Domus Tacitus It would be too tedious to recite all the particular Laws with their changes and therefore they shall be left to the view in the severall Laws of Alfred Edmond Canutus and Edward the Saxon Kings Yet one custome first begun by the Danes Englishire Stamf. lib. 1. cap. 10. Miror cap. 1. Sec. 13. I cannot omit That if a man were found slain whose parents or friends were unknown by common intendment he was to be presumed to be a Dane and then if the delinquent were not taken nor fled to Sanctuary nor known where he is the whole Hundred was amerced for the escape Bracton lib. 3. tract 1. cap. 15 but if the party slain was known to be of English parents it was otherwise This custome lasted long after the Normans time the Dane being onely changed into the Norman Breach of peace Batteries Maimes Imprisonments Alured praes Lam. 19. and was called Englishire Batteries maimes imprisonments and other breaches of peace were punished by fine which they called Fightwitt Grithbrece or Frithbreck and the delinquent ordinarily put in sureties for the peace for future time The fine was increased by the number of delinquents joyning in the fact for if seven joyned it was a riot and the fine was then called Flothbote If the number were five times so many viz. thirty and five then it was a rebellion or warre Secondly the fine was increased by the time or season of the fact as in Lent or while the Army was in the field because in the first case the holy time was prophaned in the second the Country was more endangered when the strength was abroad and the Army might be discouraged at the news of the disturbance at home And therefore the Saxons punished this with death or fine sutable Ll. Edw. c. 31. Ll. Sax. cap. 36. Ll. Inae cap. 6. Thirdly the fine was the greater in case of the excellency of the place where it was holy ground or in the presence of great persons such as the King or Bishop The seventh Commandement Adultery amongst the old Germans was holden a crime of a high nature the penalty of the woman that committed that crime was death I finde not what became of the man in latter times of the Saxons it grew lesse penall Baronus Anal. 745. num 5. Concil Brit. 558. Ll. Canut 50. reg 22. and more common By Alfreds Law it was finable and the fine called Legierwit By Canutus the man was fined or banished the woman to lose her nose eares and her portion Incest was more penall to the man then Adultery and yet it touched not his life Incest Ll. Sax. 48. reg 19. Robbery amongst the Lacedemonians was accounted but a trick of youth the Athenians thoughts were more severe The Germans likewise differed in their censures concerning it The eighth Commandement the Saxons punish it with death but the Angles with fine onely yet Ina the King made it mortall and Canutus followed him therein Lind Ll. Ang. Sax. Ll. Sax. 4. reg 3 Miror 262. Burning of woods Burglary Ll. Edm. cap. 6. Ll. Canut p. 59 Trespasses And Edward the Confessor limited that punishment to thefts of twelve pence in value or above burning of woods was fineable by Inaes law but Burglary was felony In King Edmunds time onely the Danes made it finable possibly being guilty in their own consciences of their own propensity to rapine and plunderings This priviledge of the dwelling house was anciently called Hamsoca or Hamsoken or Hamsokne Trespasses committed upon ground were all comprehended under the generall name of Ederbrece or hedge-breaking and the penalty was not onely the dammage to the party but also fine to the King upon action which in these daies passeth under the name of Quare clausum fregit according to the words of the Writ Ll. Sax. cap. 36. The dammages were more or lesse according to the time or season when it was done for if when the Army was abroad the dammages were doubled and in like manner if done in Lent time If the trespasse was done by a beast the owner must pay the dammages Ll. Inae 56. Ibid. c. 40. But if it were occasioned through the complainants default as through his gap no dammages were paid The constant fine to the King in all such trespasses was by Alfreds law set at five shillings Ll. Sax. c. 36. Other actions also were then used as touching dammage done to goods and actions upon the case for in Alfreds time the Plantiff recovered not onely dammages for trespasses done to possessions and goods Miror p. 301. but also costs for injuries in point of scandall and defamation in case the complainant specially declareth that he is thereby disabled or indammaged in his preferment and maketh proofe of the same suitable unto the forms of our pleadings at this day The ninth Commandement which conclude with per quod c. or deterioratus est c. The Saxons were utter enemies to perjury they punished a Ll. Aethelst c. 10. with eternall discredit of testimony b Ll. Canut c. 6. and sometimes with banishment or with grievous fines to the King and mulcts to the Judge Spec. Sax. l. 3 art 53. For that difference I finde observed in those daies between fines and mulcts albeit the more ancient times used them for one and the same for so the Historian pars mulctae Regi In all these matters where any interest was vested in the Crown the King had the prerogative of pardon yet alwaies the recompence to the party was saved Ll. Edw. c. 18. besides the security of the good behaviour for time to come as the case required CHAP. XLI Of the Lawes of property of Lands and goods and their manner of conveyance THus passing over some tops of Saxon penall Laws besides the general rule or law of eye for eye tooth for tooth c. it now remains as lightly to glance at a few generals concerning the setling and property of possessions in point of title Miror cap. 5. Sec. 1. Concerning which although it be true that the conquerours of this part of the Isle were a body aggregate of many Nations or peoples and so divers customes must necessarily settle by common intendment in severall places according as they chose their habitation Inheritance yet the generall custome of the Germans as touching discent of inheritance was to the eldest sonne For Tacitus speaking of the German Cavalry saith that the horse of the party dead went not to the eldest sonne ut cetera but to the most valiant man amongst them of that linage which words ut cetera doe plainly intimate that other matters of profit passed to the eldest sonne in point of descent Nor can I conceive how men should be induced to conceit that the custome of Gavelkind was the ancient generall custome of
antiquity For Aethbald the Mercian King above eight hundred yeeres agoe gave the Monastry of Cutham Concil Brit. 319. with all the Lands thereto appertaining to Christchurch in Canterbury and for the confirmation thereof commanded a clod of earth with all the Writings to be laid upon the Altar Another Monument hereof more ancient by the space of above 100 yeers we finde in that grant of Withered King of Kent Concil Brit. 192. of foure plough lands in the Isle of Tenet the latter part whereof this clause concludes thus Ad cujus cumulum affirmationis cespitem hujus supradictae terrae super sanctum altare posui Last will But every man had not liberty to execute the law of his inheritance in his life time for some were surprised with sudden occasions and unexpected issues and ends and in such cases they did what they could to declare their intents by last will which by common intendment being in writing hath occasioned some to thinke that the Saxons in their originall had no use thereof being as they conceived so illiterate as not having the use of writing but the Character remaining to this day evinceth the contrary nor can those words of Tacitus nullum est testamentum in any rationall way be expounded in this sence if we consider the context which runneth thus Haeredes successores cuique liberi nullum est testamentum Which in my opinion sounds in this sence The heires and successors to every one are his children and there is no testamentary power to disherit or alter the course of descent which by custome or law is setled Otherwise to deny them the use of all testamentary power was a matter quite abhorring the custome of all the Grecians from whom they learned all that they had M Westm An. 817. Malmsb. gest Reg. l. 2. c. 2. Neverthelesse the Saxons had not been long acquainted with the Romanists but they had gotten that trick of theirs also of disheriting by last will as by the testament of Aethelwolfe and others of the like nature in Histories may appeare The conveyances formerly mentioned concerned Lands and goods but if no such disposall of goods were Goods the ancient German custome carried them after the death of the ancestor promiscuously or rather in common to all the children but in succeeding times the one halfe by the law of Edmond passed to the relict of the party deceased by force of contract rather then course of descent After him Edward the Confessor recollecting the Laws declared that in case any one died intestate the children should equally divide the goods which I take to be understood with a salvo of the wifes dower or portion As yet therefore the ordinaries had nothing to doe with administration for goods passed by descent as well as Lands and upon this custome the Writ de rationabili parte honorum was grounded at the common law as well for the children as the wifes part F.N. Br. 122. according as by the body of the Writ may appeare CHAP. XLII Of times of Law and vacancy SUch like as hath been shewed was the course of government in those darker times nor did the fundamentals alter either by the diversity and mixture of people of severall Nations in the first entrance nor from the Danes or Normans in their survenue not onely because in their originall they all breathed one ayre of the laws and government of Greece but also they were no other then common dictates of nature refined by wise men which challenge a kind of awe in the sence of the most barbarous I had almost forgot one circumstance which tended much to the honour of all the rest that is their speedy execution of justice for they admitted no delaies till upon experience they found that by staying a little longer they had done the sooner and this brought forth particular times of exemption Miror cap. 4. Sec. 16. as that of infancy and child-bearing in case of answer to criminail accusations But more especially in case of regard of holinesse of the time as that of the Lords day Saints daies Ll. Sax. cap. 10. Concil Brit. 518. Fasts Ember daies for even those daies were had in much honour Nor onely daies but seasons as from Advent to the Octaves of Epiphany from Septuagesima till fifteen daies after Easter or as by the Laws of the Confessor till eight daies after Easter and from Ascention to the eighth day after Pentecost and though as Kings and times did change so these seasons might be diversly cut out as the Laws of Alfred Aethelstan Aetheldred Edgar Canutus and Edward doe manifest yet all agreed in the season of the yeere and that some were more fit for holy observation then others And thus by the devotion of Princes and power of the Clergy the foure Terms of the yeere were cut out for course of law in the Kings Court the rest of the yeere being left vacant for the exercise and maintenance of Husbandry and particular callings and imployments saving that even in those times the Courts of the County and Hundred held their ancient and constant course Last of all and as a binding law unto all Miror cap. 4. Sec. 18. it was provided that false Judges should give satisfaction to the party wronged by them and as the case required to forfeit the residue to the King to be disabled for ever for place of judicature and their lives left to the Kings mercy CHAP. XLIII An Epilogue to the Saxon government ANd thus farre of the joynts of Saxon government in their persons precincts courts causes and laws wherein as the distance will permit and according to my capacity I have endeavoured to refresh the Image of the Saxon Common-weale the more curious lineaments being now disfigured by time afarre off it seems a Monarchy but in approach discovers more of a Democracy and if the temper of a body may appeare by the prevailing humour towards age that government did still appeare more prevalent in all assaults both of time and change The first great change it felt was from the Danes that stormed them and shewed therein much of the wrath both of God and man And yet it trenched not upon the fundamentall law of the peoples liberty The worst effect it had was upon the Church in the decay of the power of Religion and worship of God For after much toile and losse both of sweat and blood the Danes finding that little was to be gotten by blows but blows and that the Clergy at the least was the side-wind in the course of all affaires laid aside their Paganisme and joyned with the Clergy and as their converts and pupils gained not onely their quiet residence but the favour of the Clergy to make triall of the Throne and therein served the Clergy so well as they brought the people to a perfect Idolatry with times places and persons and subjection of their estates to Church tributes
the worke in hand to disclaime that custome which must needs be of infinite consequence in the effecting of what was principally sought after viz. the union of the two peoples Normans and Saxons into one I say it was principally sought after by the Norman conquerour if not led thereto by his own genius yet necessitated thereto by force of reason of state as shall appeare hereafter And what could be imagined a more ready way to stay the effusion of blood and all other unhappy events of enmity then by taking away enmity it selfe or a more speedy and certaine course for union then to reduce the men and women of each people to mutuall society and to seale up all by a lasting bond of marriage or greater encouragement for the comfortable proceedings therein then the setling of the constant maintenance of the wife in case of survivorship by the law of dower of the Lands and Tenements of the Husband Lindenbrog Concil Aenham c. 19. Ll. Edm. which was so full of contingencies and uncertainties in the portion of goods that was by the Saxon law appointed to the wife in such case Nor was this all for by marriage thus made to the Normans they had a great hold not so much over the English as in the English and that not onely during coverture but by reason of this title of Dower the women became tenants and under the Lords wing so as they durst not willingly and illegally offend their Lord in their widdowhood nor by law nor reason match themselves and their dowry to any other that was not first allowed by the Lord to be in friendship with him and thus became the tenants widdows to be at the liking of the Lord for their marriage and the like hereto may be said concerning the husband in case of tenant by the curtesie Miror fo 20. and however by the Norman former practise it was much disturbed yet by Henry the first it was again reduced to its former right rather then originall arising from his grant as some hold and proved advantagious for the ends aforesaid Now as touching their marriage portion of goods because the Saxon law had already endowed them thereof they could not be induced to lay down their known ancient right till they found the new law of dower to settle and so for some time both laws were in force untill the more ancient Saxon law had an honourable buriall Neverthelesse for the present the law abridged that right so farre as to limit it to the widdow during widdowhood according to the former Saxon law Upon consideration of all which it may well be conceived that the power of the Lords in consenting or dissenting to the marriages of their tenants widdows and wards was not so much an usurpation upon the common right of the English subjects as a custome rationally and with great wisdome as the course of affaires then stood upholden and allowed amongst them principally for the speedy setling of a peaceable government and consolidating of two Nations into one and wherein England was then so happy as to come to a conclusion in seven yeeres which cost their ancestors nigh two hundred yeeres experience with the Britons besides a world of bloodshed that might have been spared ere they could finde out the right way to a desired peace by mutuall marriages had between them cap. 4. 4. Wardship Such widdow shall have the custody of the Lands of such children or otherwise such other person as by right ought to have the same This is the first news of Wardships that passed abroad cum privilegio of a received Law which together with the former declare the right custome of the Normans M. Paris and thereby the injustas consuetudines quibus Angliae regnum opprimebatur viz. Arbitrary reliefe taken of the Tenants estate arbitrary marriages made of their persons and arbitrary grants of guardianship of their lands for as yet oppression was not so high flown as to cast the government of the persons of their Wards out of the view of the Lords provisionary care upon adventure of the next inlaw whether man or woman wise or unwife under pretence to train him up in military service fit for the Lords own safety and the Kingdomes lifeguard but it was the proper ground of the Lords own seisure and right of wardship he being looked upon by the eye of common reason as the onely meet man that both could and would effect that worke so as might be most advantagious to the publique which seemed to be chiefly concerned herein and upon the same generall ground the survey of fooles accompanied the former albeit it was not in practise till Henry the first brought it in as the Mirror of justice saith fo 258. Ll. Canut 37. yet it came upon an ancient foundation laid in the time of the Danes For my own part I will not dispute the point whether this custome of Wardship was purely Norman or whether it was derived from the Saxons anciently who possibly might have some respect to Orphans in such cases to traine them up for the publique service in point of war especially being possessors of a known right of reliefe as well as Alfred the Saxon King did undertake the worke for the training of some such particular persons in learning for the service of the publique Asser Menev. in time of peace and civill government yet thus much appeareth that guardianship of Lands was a known custome enough to make and maintaine a right and that it by law was a right belonging to some persons before others and that this had been a custome before the former unjust customs crept into government of the Conquerour and principally of his sonne Rufus and though it be questionable whether it setled first upon the Normans or the English yet its manifest that if one people had it the other people now comming into union with that people could not in reason except against that custome which the other people had taken up upon so honorable grounds as reason of State which as the times then were was evident and superlative especially the customes being under the regulating of Law and not of any arbitrary power and can be no presidents of the reliefe marriage and wardship that after ages usurped Tenants in Knights service shall hold their Lands cap. 5. c. acquitted of all taxes 5. Acquittall that they may be more able to provide Armes and be more ready and fit for the Kings service and defence of the Kingdome This law whither it be a renewing of a former custome or an introduction of a new Law it s cleare it was upon an old ground That Tenants by Knight service must be ready for the service of their Lord and defence of the kingdome whereof afterwards But the law is that these men shall hold their lands of that tenure acquitted of all taxes though legally imposed upon the body of the Kingdome which must be
conceived to be for the publique benefit viz. either for the preparation or maintenance of publique warre for in such cases it hath been in all times held unreasonable that those whose persons are imployed to serve in the warres should hold lands doubly charged to the same service viz. to the defraying of their own private expences in the warre and maintenance of the publique charge of the same war besides CHAP. LIII Of divers Lawes made concerning the execution of justice ALthough in proceedings in cases of vindicative justice delinquents might seem to be left rather to the fury then mercy of the law yet so long as men are under the law and not without the law it hath been alwaies held a part of justice to extend what moderation might possibly stand with the honour of the law and that otherwise an over rigid and fierce prosecution of the guilty is no lesse tyranny then the persecution of the not guilty and although violence was the proper vice of these times yet this point of honour must be given to the Normans that their Sword had eyes and moved not altogether by rage but by reason No sentence shall passe but upon averment of the complaint by accuser or witnesses produced Ll. Hen. 1. c. 5. Fine and pledges shall be according to the quantity of the offence Ll. Hen. 1. M. Paris By these two laws of Henry the first the subjects were delivered from three great oppressions first in making them offenders without complaint or witnesse Secondly in imposing immoderate fines Lastly in urging extraordinary baile Forfeiture of fellons Lands is reduced to a yeere and a day Miror fo 261 The Normans had reduced the Saxon law in this case unto their own last which stretched their desire as farre as the estate would beare but this being so prejudiciall to the immediate Lords who were no offenders in this case and so contrary to the Saxon law it was both done and undone in a short space by the allowance of Henry the first Intent of criminall offences manifested by act punished by fine or mulct This by Alfreds law was punished by Talioes law Miror fo 254. but now by a law of Henry the first reduced to mulcts Mainperners are not to be punished as principals unlesse they be parties or privies to the failing of the principall This law of Henry the first repealed the former law of Canutus which must be acknowledged to be rigorous Miror fo 141. although not altogether without reason No person shall be imprisoned for committing of mortall crime unlesse first he be attainted by verdict of twelve men Ll. Hen. 1. c. 5. By imprisonment is intended close imprisonment or imprisonment without baile or mainprise for otherwise its apparent that as well by the Saxon as Norman laws men were brought to triall by restraint Appeales of murder restrained within the fourth degree Before this law Appeales were brought by any of the blood or kinne of the party slaine Miror cap. 2. Sec. 7. but now by Henry the first restrained The ground seems to be for that affection that runnes with the blood grows so cold beyond the fourth degree that the death of the party is of so small account as can it scarcely be reputed a losse of such consequence to the party as to expose the life or price of the life of the manslayer unto the claime of such an one and thus the Saxon law that gave the satisfaction in such case to the whole kindred became limited to the fourth degree as I conceive from the Ecclesiastical constitution concerning marriage Two things more concerning juridicall proceedings may be noted the one concerning speedy course of justice wherein they may seem to justifie the Saxon way but could never attaine to their pace in regard they yeelded so much time to Summons Essoines c. The other concernes election of Judges by the parties for this we finde in the lawes of Henry the first CHAP. LIV. Of the Militia during the Normans time THe power of Militia is either the legislative or executory power the legislative power without contradiction rested in the grand Councell of the Kingdome to whom it belonged to establish laws for the government of the kingdome in time of peace And this will appeare in the preparation for warre the levying of warre and mannaging thereof after its levied for the preparation it consisteth in leavying men and munition or of money In all which questionlesse will be a difference between raising of warre by a King to revenge a personall injury done to the Kings own person and a warre raised by the whole Kingdome or representative body thereof which is commonly done in defence of publique interest and seldome in any offensive way unlesse in recovery of a right of possession either formerly lost or as yet not fully setled Now although it be true that seldome do injuries reflect upon the Kings person alone but that the Kingdom will be concerned therein to endeavour a remedy yet because it may fall out otherwise Kings having been occasioned to leavy war of their own accord but in such case could neither compell the persons of his subjects or their estates to be contributory And of this nature I take the warre leavied by Harold against the Conquerour to be wherein the greatest part of the Kingdome was never ingaged nor therefore did it feele the dint of the Conquerours Sword at all and in this case the Militia must be allowed to such as beare the purse nor can it be concluded to be the Militia of the Kingdome nor any part thereof although it may connive thereat But to set this consideration aside as not coincident at all with the Norman ingagements after they were crowned and to take all the subsequent warres to be meerly defensive of the right of the Crown as in sober construction they will appeare to be as touching the levying of money its evident that it lay onely in the power of the grand Councell of the Kingdome for otherwise the laws were setled that no Tax should be made or taken but such as were due in the Confessors time as formerly hath been shewed Secondly for the preparing of men and munition it was done either by tenure or by speciall law as touching tenure it was provided by way of contract that those that held by Knights service should be ready with their Armes to assist the King for the defence of the Realme So as they were not bound by their tenure to ayd him in any other cases Ll. Gulielm cap. 57. Others were also by especiall law of the Land bound to be ready for their service in that kind For all the inhabitants of this Kingdome held their estates under a generall service which by common right they are bound to performe viz. in time of danger to joyn in defence of their Countrey This is the common fealty or allegiance which all men owe Ll. Gulielm c. 59. and
as foure yeeres for within that time Richard Lucy one of the Justices had renounced his Office and betaken himselfe to a cloister and yet was neither named in the first commission nor in the latter nor did the last commission continue five yeers Hoved. An. 1184. for within that time Ralph Glanvile removed from the Northerne circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appeare though little to the honour of the justice of the Kingdome or of that Judge however his book commended him to posterity I take it upon the credit of the reporter Co. jurisd c. 33 that this Itinerary judicature was setled to hold every seven yeeres but I finde no monument thereof before these daies 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 cognisance 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 Clergy Hoveden Glanvil l. 14. c. 7. I shall say no more of this but that in their originall these Iters were little other then visitations of the Countrey by the grand Councell of Lords Nor shall I adde any thing concerning the Vicontiel courts and other inferiour but what I finde in Glanvile that though robbery belonged to the Kings court Glanv lib. 1. cap. 2. yet thefts belonged to the Sheriffs Court and if the Lords court intercepts not all batteries and woundings unlesse in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour trespasses Idem lib. 9. 10. besides common pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certaine Laws of Iudicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matters 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 finde 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 1. Heresie that ever troubled this Island was inbred by Pelagius but that was amongst the Britons and was first battered by the Councell or Synod under Germanus but afterwards suppressed by the zeale of the Saxons who liked nothing of the Brittish breed and for whose sake it suffered more happly then for the foulnesse of the opinion The Saxon church leavened from Rome for the space of above five hundred yeeres held on its course without any intermission by crosse doctrine springing up Hoved. 585. till the time of Henry the second Then entred a sect whom they called Publicans but were the Albigenses as may appeare 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 this Kingdome unders the name of this Sect whom he caused to be brought before a councell of Bishops Nubrig l. 2. cap. 13. 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 forehead whipped and exposed to extremity of the cold according to the decree of the Church died Decret Papae Alexand. Hoveden 585. This was the manner and punishment of Hereticks in this Kingdome in those daies albeit it seemeth they were then decreed to be burnt in other countries if that relation of Cogshall be true which Picardus noteth upon the 13 chapter of the History of William of Newberry out of which I have incerted this relation Another case we meet with in Henry the seconds time concerning Apostacy 2. Apostacy Bracton lib. 3. cap. 9. which was a crime that as it seems died as soon as it was born for besides that one we finde no second thereto in all the file of English story The particular was that a Clerke had renounced his baptisme and turned Jew and for this was convicted by a councell of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortall and the manner of conviction of both by a councell of the Clergy and delivered over to the Lay power who certainly proceeded according to the direction of the Canon or advice of the councell These if no more were sufficient to demonstrate the growing power of the Clergy however brave the King was against all his enemies in the field Treason 3. 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 daies is wrapped up wholly in the person of the King was in Henry the seconds time imparted to the King and Kingdom as in the first times it was more related to the Kingdome And therefore Glanvile in his booke of laws speaking of the wound of Majesty exemplifies sedition and destruction of the Kingdome to be in equall degree a Lib. 1. cap. 2. wound of Majesty Lib. 10. cap. 1. 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 blood for so I take the meaning of the words in relation to what ensueth Fellonies 4. Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with losse 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 seconds time as appeareth in Hoveden But treason or treachery against the oath fealty Ll. Hen. 1. c. 25. or bond of allegiance as of the servants against the Lord was punished with certaine and with painfull deaths and therefore though the murther of the King was treason yet the murder of his sonne was no other then as of another man unlesse it arose from those of his own servants Ll. Hen. 1. c. 79 The penalty of losse of estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the moveables Glanvil lib. 7. cap. 17. was to the Sheriffe of the County unto whose cognisance the case did belong and the land went to the Lord immediately and not to the King But in all cases of Felony of
this day hold the last in custome to all intents whatsoever The last branch provideth the remedy to recover to the heire his possession in case it be detained either through doubtfulnesse of age of the heire or his title and it directs the issue to be tried by twelve men This triall some have thought to be of Glanvils invention and it may well be that this triall of this matter as thus set down was directed by him yet he useth often in his booke the word solet and in his preface saith that he will set down frequentius usitata and its past question but that the triall by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the widdow of the tenant whose dower is not onely provided for but her reasonable part of her husbands personall estate The originall hereof was from the Normans and it was as popular as that of Wardships was Regall 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 Kings 10. comming over Sea next after the peace made between him and his sonne 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 worke which formerly belonged to the County courts Glanv lib. 13. cap. 33. 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 Kings last voyage or going into Normandy Justices shall doe right upon the Kings writ for halfe a 11. Knights fee and under unlesse 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 inquire of Escheates Lands Churches and 12. women in the Kings gift And of Castle guard who how much and where So as the Judges itinerant had the worke of Escheators and made their circuits serve as well for the Kings profit as Justice to the subjects They used also to take fealty of the people to the King at one certaine time of the yeere and to demand homage also These matters of the Kings Exchequer made the presence of the Judges lesse acceptable and it may be occasioned some kind of oppression And as touching Castleguard it was a tenure in great use in these bloody times and yet it seemeth they used to take rent instead of the personall service else had that enquiry how much been improper 13. Of a tenants holding and of severall Lords That one man may hold severall lands of severall Lords and so owe service to them all is so common as nothing can be more neverthelesse it will not be altogether out of the way to touch somewhat upon the nature of this mutuall relation between Lord and Tenant in generall that the true nature of the diversity may more fully appeare 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 undertooke to performe service to the Lord Glanv lib. 9. cap. 4. and the Lord undertooke protection of the tenant in his right to that tenement The service was first by promise 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 himselfe 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 acknowledgement and promise not onely to performe the services due but even to be devoted to the Lords service to honour him and to adventure limbe and life and to be true and faithfull 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 each For though it be true that by promise of being the Lords man a generall service may seem to be implied yet in regard that it is upon occasion onely of that present tenure it seemeth to me that it is to be restrained onely to those particular services which belong to that tenement and therefore if that tenement be holden in soccage although the tenant be bound to homage yet that homage ties not the tenant to the service of a Knight Lit. lib. 2. cap. 5 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 himselfe to be his man Nor doth the tenants homage binde him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for severall tenements Glanv lib. 9. cap. 1. Lib. 7. cap. 10. and these two Lords be in warre one against the other the tenant must serve his chiefe Lord of whom the capitall house is holden or that Lord which was his by priority who may be called the chiefe Lord because having first received homage he received it absolutely from his tenant but all other Lords receive homage of such tenant with a saving of the tenants faith made to other Lords and to the King who in order to the publique had power to command a tenant into warre against his own Lord. If therefore he be commanded by the King in such cases unto warre he need not question the point of forfeiture Glanvil lib. 9. cap. 1. but if he be commanded by a chiefe of his other Lords into warre against a party in which another of his Lords is engaged his safest way is to enter upon the worke because of his allegiancc to that Lord yet with a salvo of his fealty to that other Lord. Ibid. cap. 4. But in all ordinary cases tenants and Lords must have regard to their stipulation for otherwise if either breake the other is discharged for ever and if the fault be in the tenant his tenement escheats to his Lord and if the Lord faile he loses his tenure and the tenant might thence forth disclaime and hold over for ever Neverthelesse the Lords had two priviledges by common custome belonging to their tenures which although not mentioned in the stipulation were yet more valuable then all the rest the one concerning matter of profit the other of power That of profit consisted in ayds and reliefe The ayds were of three kinds Ibid. c. 8. one to make the Lords eldest sonne Knight the other to marry his eldest daughter the third to helpe him to pay a reliefe to his Lord Paramont which in my opinion
sounds as much as if the tenants were bound by their tenures to ayd their Lord in all cases of extraordinary charge saving that the Lord could not distraine his tenant for ayd to his warre and this according to the Lords discretion Ibid. for Glanvile Glanv l. 9. c. 8 saith that the law determined nothing concerning the quantity or valew of these ayds These were the Norman waies and savoured so much of Lordship that within that age they were regulated But that of reliefes was an ancient sacrifice as of first fruits of the tenement to the Lord in memoriall of the first Lords favour in conferring that tenement Ibid. and it was first setled in the Saxons time The Lords priviledge of power extended so farre as to distraine his tenants into his own Court to answer to himselfe in all causes that concerned his right and so the Lord became both Judge and party which was soon felt and prevented as shall appeare hereafter Another priviledge of the Lords power was over the tenants heire after the tenants death in the disposing of the body during the minority and marriage of the same As touching the disposing of the body the Lord either retained the same in his own power Glanv 7.10 or committed the same to others and this was done either pleno jure or rendring an account Ibid. c. 12. As concerning the marriage of the females that are heires or so apparent the parents in their life time cannot marry them without the Lords consent nor may they marry themselves after their parents death without the same and the Lords are bound to give their consent unlesse they can shew cause to the contrary The like also of the tenants widdows that have any dowry in the lands of such tenure And by such like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons 14. Of the power of the last Will. It is a received opinion that at the common law no man could devise his lands by his last will If thereby it be conceived to be against common reason I shall not touch that but if against custome of the ancient times I must suspend my concurrence therewith untill those ancient times be defined for as yet I finde no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all conveyances Voluntas donatoris de cetero observetur And therefore nothing was more ordinary then for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. M. Paris An. 1216. Hoveden An. 1199. Malmsb. nov l. 1. Malmsb. l. 3. Thus King John appointed Henry the third his successor and Richard the first devised the Crown to King John and Henry the first gave all his lands to his daughter and William the Conquerour by his last will gave Normandy to Robert England to William and to Henry his mothers lands If then things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller free holds should be of too high esteem to be credited to such conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposall of the last will of the possessour nor doe I thinke that either they were thus in this Kingdome or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vaine Glanvil l. 7. cap. 1 5. I have observed the words of Glanvile concerning this point and I cannot finde that he positively denieth all conveyance of land by Will but onely in case of disherison the ground whereof is because its contrary to the conveyance of the law and yet in that case also alloweth of a disposing power by consent of the heire which could never make good conveyance if the will in that case were absolutely voide and therefore his authority lies not in the way Nor doth the particular customes of places discountenance but rather advance this opinion for if devise of lands were incident to the tenure in Gavell kind and that so generall in old time as also to the burgage tenures Ll. Gulielm cap. 61. which were the rules of Corporation and Cities Vbi leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common law And therefore those conveyances of lands by last will that were in and after these times holden in use seem to me rather remnants of the more generall custome wasted by positive lawes then particular customes growing up against the common rule It s true that the Clergy put a power into the Pope to alter the law M. Paris An. 1181. Hoved An. 1181. Decret Alex. pap Hoveden fo 587. as touching themselves in some cases for Roger Archbishop of Yorke procured a faculty from the Pope to ordaine that no Ecclesiasticall persons Will should be good unlesse made in health and not lying in extremity and that in such cases the Archbishop should possesse himselfe of all such parties goods but as it lasted not long so was himselfe made a president in the case for being overtaken with death ere he was provided he made his will in his sicknesse and Henry the second possessed himselfe of his estate And it s as true that Femme coverts in these daies could make no will of their reasonable part Glanv l. 7. cap. 5 16. because by the Saxon law it belonged joyntly to the children Nor could usurers continuing in that course at the time of their death make their will because their personall estate belonged to the King after their death and their lands to their Lords by escheate although before death they lie open to no censure of law but this was by an especiall law made since the Conquerours time for by the Saxon law they were reputed as outlaws Neverthelesse all these doe but strengthen the generall rule Ll. Edw. 37. viz. that regularly the last will was holden in the generall a good conveyance in law If the will were onely intended and not perfected or no will was made then the lands passed by descent and the goods held course according to the Saxon law Glanv l. 7. c. 6. cap. 8. viz. the next kinsmen and friends of the intestate did administer and as administrators they might sue by Writ out of the Kings court although the Clergy had now obtained so much power as for the recovery of a legacy or for the determining
common law and Kings prerogative would agree thereto The complaints are of this natures 1. That the Church-possessions in their vacances are wasted and that Escheators doe not onely seise the personall estate of the Abbot or Prior deceased but such Corne in the barne and other goods belonging to the houses for their maintenance as also the profits of Churches impropriate 2. 3 4 5. Elections are either disturbed by the Kings Letters praeceding or by delay of the Royall assent subsequent the said elections 6. The Lay power without the advice of the Clergy doe put in eject or restore incumbents to Benefices voyd 7. Prelates are summoned to answer to the Lay power in the Writs Quare excommunicavit and Quare non admisit 8. Clerks are distrained in their Lay fees to answer before the Lay power in action of debts trespasse or other personall actions and in case they have no Lay fees the ordinary is distrained by his Barony to cause the Clerke to appeare 9. The Laity are forbidden to take oath or to inform upon oath before the Prelates and to obey Prelates commands in such cases 10. Persons taken and imprisoned upon excommunication are ordinarily dismist without satisfaction unto the Prelate and sometimes are not taken by the Sheriffe 11. 12. 33. 13. notwithstanding the Kings Writ and as well the King as his Officers doe ordinarily communicate with such as are excommunicated and likewise command others to communicate with them 14. Clerks imprisoned for felony are refused to be delivered to the Ordinary unlesse upon security to appeare before the Justices in Oyer 15. and sometimes are hanged before their Ordinary can demand them and sometimes their heads are all shaven that they may not appeare to be Clerks 16. Justices itinerant doe imprison Clerks defamed for felony or otherwise outlaw them if they doe not appeare And otherwise proceed against Clerks after their purgation before the ordinary 17. 18. The Lay power seises upon the estates of Clerks degraded for crimes 19. Clergy are compelled to answer and give satisfaction for offences against the forrest laws 20. before the Lay power And in case of default the Bishop by distresse is compelled to order satisfaction 21. as well in such cases as in person all actions 22. Priviledges of Sanctuary are invaded by force 23. Executors of Bishops are hindred from administring the estate without licence first obtained from the King 24. The Kings tenants goods are seised after their decease by the Kings Bailiffs 25. Intestates goods are seised by their Lords and their Ordinary hindred from administration 26. The Kings prohibition passeth in case of Tythes and Chappels 27. The like in cases of troth-plight perjury cerage heriet or other Church duties as money for reparations of Churches and fences in Churchyards 28. pecuniary punishment for Adultery 40. 29. and costs of suit in Ecclesiasticall court sacriledge excommunication for breach of the liberties of the Church contrary to the grand Charter 30. In cases of prohibition if the Ecclesiasticall Judge proceed contrary to the same he is attached and compelled to shew his acts in Court if the Lay Judge determine the cause to be temporall the Ecclesiasticall Judge is amerced if he proceed against the prohibition and it s tried by witnesses of two ribaulds and in case it be found for the Ecclesiasticall Judges cognisance 31. yet there is no costs allowed for such vexation 32. That Jewes in matters Ecclesiasticall aforesaid are by the Kings prohibition drawn from the Ecclesiasticall Judge unto the Lay Magistrate 34. Question about Lands given in Frankalmoine are tried in the Lay courts 35. 36. 37. 38. and by reason of such tenure the owners though Clergy men are compelled to doe suite at the Lay courts and are charged with impositions and are distrained hereunto although the Lord have other Land of the Donor in Frankallmoine subject to his distresse 39. Prelates summoned to higher Courts are not allowed to make atturnies to appeare for them in the inferior civill courts 41. Grantees of murage or other unwonted impositions compell the Churchmen to pay the same 42 43. The Clergy are charged with Quarter Cart-service and purveying 44. The chancery sendeth out new Writs contrary to the liberties of the Church and the law of the Land without the assent of the Councell of the kingdome Princes and Prelates 45. The King doth compell the Clergy to benevolences to the King at his voyage into forraine parts 46. Amercements granted to Clergy men are turned into fines by the Justices and by them taken 47. Clergy men are fined for want of appearance before the Justices itinerant and of the Forest upon common summons 48. Quo warrantoes granted against the Clergy for their liberties and the same seised unlesse they be set down in expresse words in their Charter 49. 50. notwithstanding that by long custome they have enjoyed the same and many times contrary to expresse grant This is the summe of their paper of grievances and because they found the King either wilfull or unconstant they resolve upon a remedy of their own by excommunication and interdiction not sparing the persons of any principall or accessory nor their Lands no not of the King himselfe and for this they joyn all as one man Now what scare this made I know not but Henry the third in the Stat. of Marlb and Edward the first in his Stat. at Westminster and other Satatutes the first spake faire and seemed to redresse some of these complaints as also did Edward the second and yet the Common law lost little ground thereby That which Henry the third did besides his promises of reforming was done in the Stat. of Marlbridge The successors of Abbats Priors and Prelates Marlbr c. 29. c. shall have an action of trespasse for trespasses done nigh before the death of their predecessors upon the estates of their Corporations And shall prosecute an action begun by their Predecessors And also shall have an assize against intruders into any of the possessions belonging to the said Corporations whereof their predecessors died seised This might seem a remedy provided against the first malady complained of and questionlesse bound all but the King and so might perchance abate somewhat the edge of that Article But it being the Clergies reach to grow rich and the Popes cunning to help on that worke that they might be as stores for supply of his treasury and had forbidden Abbats and other Prelates c. the liberty of disposing their estates by last Will. Kings therefore as supreame patrons to these bodies in their vacances used to seise all the estates of the Prelates with the temporalties to their own use as well to preserve the riches of the kingdome to it selfe and the possessions of such Corporations from spoile as to be a cloke of their own covetousnesse And under the estates of the Prelates or heads of these Corporations all the
Goods and Chattels belonging to the said Corporations were comprehended in regard that all was by law adjudged to be in the sole possession of such head Fits Abbe 25. and without whom all the rest were accounted but as dead persons Marlbr c. 10. No Clergie man is bound to attend at the Sheriffs Turne William the Conquerour first exempted the persons of the Clergy from attendance upon temporall Courts yet they were still urged thereto Gloss p. 428. Ll. Hen. 1. c. 31. and especially by a Law in Henry the firsts time but by this law they are discharged and in some measure a provision made against the grievance in the 39th Article before mentioned These amends we find made to the Clergy by Henry the third besides his confirming the grand Charter And his sonne Edward the first pursued the same course especially in his first times when he was but tenderly rooted as may appeare in the Statute of West 1. Clergy men nor their houses shall be charged with Quarter nor their goods with purveyance or cart-service West 1. cap. 1. under perill of imprisonment and dammages by action or imprisonment The great endowments of Lands Rents and Revenues given to the Church-men by the Laity was for the maintenance of Hospitality and works of charity The founders and benefactors hereby obtained a right of corody or entertainment at such places in nature of free quarter which in the necessitous times of Henry the third became so common that every one that had power never questioned right and the King above all the rest by meanes whereof the Church Revenues were exceedingly wasted for remedy whereof all offenders are by this Statute made liable to fine and imprisonment and double dammages in case of action of trespasse the King only excepted against whom they had no defence but would rather have wonne him to have been their defence against the exactions from Rome that continually plagued them A Clerke taken upon felony being demanded West 1. cap. 2. shall be delivered to the Ordinary but being indicted shall not be dismissed by the Ordinary without due purgation With due respects to the judgement of those grave and honourable persons of the Law Co. 2. instit 164. Stamf. 130. it seemeth to me that before the making hereof the use was that if a Clerke was defamed or appealed by an offender for felony before conviction he was forthwith imprisoned nor could he be delivered unto the Ordinary upon demand before inquest taken unlesse upon sufficient security to indure the triall before the Judges itinerant which thing was not easie to be had for a Clerke as times then were This Law therefore was made in favour of the Clergy who required that such as were Clerici noti honesti should forthwith upon their apprehending be sent unto their Ordinary M. Paris addit fo 200 306 207. and those which were vagi incogniti should upon demand be delivered to be judged by their Ordinary freely and non expectatis justiciariis quibuscunque Such wandring Clerks therefore the Clergy will have delivered before inquisition if demand be made Neverthelesse because the indictment passed many times befor the demand came for by the 15 Article of the Clergies complaints foregoing it appeares that the Lay Judge made more then ordinary speed for feare of stop This law provided that such also should be delivered to their Ordinary and that due purgation should passe before the party were delivered and in case the Ordinary neglected his duty herein he was liable to a fine or amercement Briton 4. fo 11. Thus is Briton to be understood in this point whereas Bracton speaking of such as are convicted affirmeth that if demand be made of such as are not indicted for of such he speaketh they ought to be delivered without indictment Bracton lib. 3. fo 123. I suppose he meaneth by the Church law for till this Statute the temporall Judges practice was otherwise as appeareth by the 14 Article of the Clergies complaint foregoing and so by this Law the 14 and 15 Articles of the Clergies complaint are answered West 1. c. 5. Disturbers of the freedome of elections fined With submission to the judgement of others I suppose that this was framed principally for the satisfaction of the Clergies complaints in the third fourth and fifth Articles foregoing and I am the rather induced hereto because as touching elections into temporall places of government severall laws are especiall framed such as are elections of Sheriffs and Coroners whereof the one is West 1. cap. 10. the other Artic super Cart. cap. 10. and no law is especially made as touching the elections of the Clergy if not this W. 2. c. 19. Ordinaries having the Goods of the intestate shall answer his debts Originally the goods of the intestate passed by a kinde of descent to the children afterward by a Saxon law the wife had her part and this continued all the Normans time But now the strength of the Canon law growing to its full pitch after a long chase attached the prey In Henry the firsts time they had gotten a taste for although the wife and children or next of kinne had then the possession yet it was for the good of the soule of the deceased and the Ordinary had a directing power therein and so was in the nature of an overseer and somewhat more Afterwards in the time of King John the Clergy had drawn blood for though the possession was as formerly yet the dividend must be made in the view of the Church and by this means the deviders were but meere instruments and the right was vanished into the clouds or as the Lawyers terme it in Abeyance But in Henry the thirds time the Clergy had not onely gotten the game but gorged it both right and possession was now become theirs and wrong done to none but the Clouds This was not well digested before Edward the first recovered part of the morsell and by this law declared the use and benefit of the deceased and thus the one was satisfied in having what he used not the other in using what he had not But these are but gleanings the Law of Circumspecte agatis brings in a load at once For the Clergy being vexed with the passing of the Stat of Mortmaine whereof hereafter when we come to speake of the Clergies losses they make grievous complaints of wrongs done to their priviledges Antiq. Brit. 194. and after six yeeres the King is at length wonne and passed a writing somewhat like a grant of liberties which before times were in controversie and this grant if it may be so called hath by continuance usurped the name of a Statute but in its own nature is no other then a Writ directed to the Judges in substance as followeth Take good heed that you doe not punish the Bishop of Norwich and his Clergy if they hold plea in Court Christian of things meerely spirituall
the Kings high way or open street but by the Kings Officer and speciall Writ because distresse is incident to service and that is due as from the fee and therefore by common right the same must be recovered from the fee and such as owe service in the same but the high way or open street are more properly a franchise belonging to the King although the soile happly may be the Lords and therefore it was an old law that they should be under the Kings safegard Ll. Inae Sit pax publica per communes vias and no violence must be there tolerated but by the Kings especiall Writ which presupposeth the especiall notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distresse for it must not be excessive and also in keeping thereof for if the owner will he may replevy the same according to the ancient course Marlb cap 21. Glanvil lib. 12 cap. 12. and the Sheriffe must grant replevy if it be demanded although formerly no replevy was without speciall Writ and yet they also not alwaies readily obeyed For the times were such as the Lords were bold with the Kings courts and Ministers and refused the order of the law now in such cases wherein the matter concerned contempt of the Kings authority a fine was set upon the offender but in case it concerned onely a tort done to the party he was amerced the one is called redemption because the penalty otherwise must lie upon the person Miror cap. 5. Sec. 3. if it be not redeemed by pecuniary fine the other is called amercement which is originally a satisfaction unto the party wronged by recompence out of the personall estate of the delinquent Distric Scac. Artic. mag cart cap. 12. Thirdly as touching the matter of the distresse it must not be of Plough beasts or sheep unlesse in case of dammage fesant if other distresse may be had for the Law had a care of such Cattell as were most of publique concernment and which was the maine stocke of subsistence so farre as justice would allow and therefore the unjust taking of any mans Cattaile by any person whatsoever is liable to the same penalties that unjust distresses are West 1. cap. 16. Fourthly concerning the using of the distresse it must not be sold no not in the Kings case till fifteen daies be past after it is taken Marlbr cap. 4. Distric Scac. nor must it be carried out of the County but it must be so impounded as the owner may come to feed it and it must be discharged if the owner give security of satisfaction before the returne of the Writ Artic. sup cart cap. 12. Fifthly the intent of the distresses must be that which is just and therefore not for other suit then by the feofment is due or else by prescription and in case many are joyntly seised Marlbr cap. 9. the suit shall be by one and the rest shall contribute cap. 22. Nor must any man be compelled to shew his title to his Land by distresse cap. 13. The Common pleas shall be holden in one certaine place The Office of Judge of the Common-pleas was in my opinion distinct and severall from that of the Crown pleas nor though one and the same man might execute both authorities doth it therefore follow that it was by one and the same power as if being Judge he had thereby power in all matters of the Common pleas and also of the Crown for though it be true that Bracton saith the King hath one proper court wherein are the chiefest Judges Capitales Just nostri which both by his own testimony and Britons also did heare and determine causes of all sorts yet is it true also that it was by appeale or Writ of errour as in case of false judgement and that the King had plures curias Marblr cap. 20. which doubtlesse had their proper worke and in the time of Henry the second its cleare that six were especially assigned for the Common pleas throughout the whole Realme and yet by another especiall Commission or Letters patents the same men might also have power to determine matters of the Crown as at this day in their severall circuits This law therefore doth not as I conceive worke any alteration but onely in this that whereas formerly the Judges of Common pleas attended on the Kings Court continually as all other Judges did and whither the King removed they did the like which was a great uncertainty and grievance unto the Commons Henceforth they are fixed to a certaine place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely cap. 14. and by the Iustices itinerant sent by the King or his chiefe Iustices The law was so declared in Henry the seconds time and was questionlesse put in practise so farre forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the Kings Court but the Justices must come down to them and yet in case of difficulty the bench where the Common pleas are holden must determine the matter and where the time in the Iter in one County is too scant the remanets shall be adjourned over to be tried elsewhere in that circuit which sheweth that the Judges itinerant had their time proportioned out to every County These trials also were so favoured Westm cap. 51. as in the then holy times of Advent and Septuagesima or Lent they might be tried which although was gained by prayer made by the King to the Bishops as the words of that law are concluded yet it shewes that the Parliament had so much light as to hold the time not inherently holy but meerely sequestred by the will of the Clergy The Plantiffs also in Mortdancester may be divers if there be divers heires of one ancester by one title Stat. Gloc. ca. 6. And if there be joyntenants and the Writ be against but one and the same pleaded Conjanct feofat An. 34. E. 1. Stat. Gloc ca. 1 the Writ shall abate but if joyntenancy be pleaded and the plea be false the defendant shall be fined and imprisoned And if in the action the verdict be for the plaintiffe he shall recover dammages cap. 15. Darraine presentment shall be taken onely in the common Banke Trials in the common bank or other Courts at VVestminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally availeable This might be one cause why the Titles of Churches were still retained at the common Bank when as all other rode circuit For that Churches affaires in those times were of high regard Speed of triall also was not little regarded herein for Justices by Nisi prius properly were but for inquiry till the Statute at Westm the second made them of Oyer
was in those elder times but in two cases viz. of Kings and Castles in the one of which the government is principally concerned in the other the publique defence For it may be well conjectured that Castles were either first made in places commodious for habitation and great Towns gathered to them for their better safety or that the Townes were first gathered in places of commodious habitation and then Castles were made for their better defence or if they were imposed upon them by the victor to keepe them in awe they were neverthelesse by continuance together become tractable and conspired for the mutuall defence of each other But as touching such Cittadels or Castles that were set in solitary places they may seem rather first intended for the particular defence of some particular man and his family and neighbouring tenants and therefore in the purveyance for Castles it seems the proper Town wherein it is is principally liable to that duty because their safety is more principally interested and therefore prizes there taken may be payd at a day to come but in all other places immediately Neverthelesse this lasted not long for the souldiers found out a tricke of favouring their own quarters and preserving them in heart against a back winter knowing that at such times its better to seeke for provision nigh then to be compelled to seeke far off But this Stratagem was cut off by the next King who inhibited all manner of purveyance in any other Town Westm 1. cap. 7 then in the same Town wherein the Castle is seated This was a charge that was but temporary and occasionall That which was more lasting and burdensome upon the subjects was purveyance for the King which neverthelesse cannot be avoyded by reason of the greatnesse of his retinue especially in those daies and if they should have their resort to the market the same could not be free to the people for that the first service must be for the Kings household and so what scraps will be left for the Commons no man can tell It was therefore necessary for the Kings family to be maintained by purveyance Artic. super cart cap. 2. and to avoyd the many inconveniences which might and did arise in those spoyling times It was ordained that it should be felony for any purveyor to purvy without warrant 2. That none but the Kings purveyour must purvey for the Kings house and that he must purvey onely for the Kings house and to purvey no more then is necessary and to pay for the things they take And because Kings were oftentimes necessitated for removall from place to place purveyance of carriage was also allowed West 1. c. 32. and in case the subjects were grieved either by more purveyance then was necessary or by non payment for their commodities so taken or with composition for the Kings debts for such purveyance the offenders were lyable to fine and imprisonment Artic super cart cap. 2. Or if they were grieved by purveyours without warrant the offender was to be proceeded against as in case of felony He that serveth in Castle-guard is not liable to payment of rent for that service cap. 22. Nor is he compellable to either so long as he is in the service in the Army By the ancient custome none but a Knight might be charged with the guard of a Castle belonging to the King for the letter of this law mentioneth onely such and therefore to hold by Castle-guard is a tenure in Knight-service and it seemeth that rent for Castle guard originally was consistent with Knightservice and that it was not annuall but promiscuously Knights might either performe the service or pay rent in lieu thereof and upon occasion did neither if the King sent them into the field And lastly that a Knight might either doe the service in his own person or by his Esquire or another appointed by him thereto No Knights nor Lords nor Church-mens Carriages cap. 23. nor no mans wood shall be taken against the owners consent Nor shall any mans Carriages be taken if he will pay the hire limited by the Law Churchmen were exempted from charge to the Kings carriages meerely in favour to the Canon which exempted the goods of the Clergy from such lay service neverthelesse the complaints of the Clergy formerly mentioned shew that this was not duely observed Knights and Lords were discharged not onely for the maintenance of their port but more principally because they were publique servants for the defence of the Kingdome in time of warre and the Kingdome was then equally served by themselves and their equipage and their carriages as a necessary assistant thereunto The King shall have no more profit of felons Lands then the yeere and a day cap. 24. and the Lord is to have the remainder Anciently the Lords had all the estate of felons being their tenants Instit 2. and the King had onely the prerogative to waste them as a penalty or part thereof but afterwards the Lords by agreement yeelded unto the King the yeere and a daies profit to save the Lands from spoile Bract. lib. 3. fo 137. Prerog Reg. cap. 16. and in continuance of time the King had both the yeere and day and waste Fugitives also were in the same case viz. such as deserted their Countrey either in time of need or such as fled from the triall of Law in criminall cases for in both cases the Saxons accounted them as common felons Neverthelesse the two customes of Gloucester and Kent are saved out of this law by the Statute the first whereof saves the Land to the heire from the Lord and the second saves the same to the heires males or for want of such to the heires females and to the wife her moity untill she be espoused to another man Prerog Reg. cap. 14. Fits 2 E. 2. Tit. Escheat 12. unlesse she shall forfeit the same by fornication during her widdowhood And by the same law also the King had all Escheates of the tenants of Archbshops 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 cap. 25. All weares shall be destroyed but such as are by the Sea coaste The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the weares 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 high waies 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
of these persons the one being perpetuall the other temporary therefore is there also by these laws a difference in the disposall of their estates for the tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the naturall affection going along with the blood and this so continued in custome untill these times for though the Miror of Justices saith that Henry the first brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the first speaking of these kind of persons saith Bract. lib. 5. cap. 20. Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their parents and friends Lib. 1. cap. 10 But let the time of the entrance of this law be never so uncertaine it s now a declared law that the King in such cases is the common curator or tutor of all such persons as he is a chiefe Justice rendring to every one his right The King shall have the wrecks of the Sea Prerog Reg. cap. 11. West 1. cap. 4. What shall be called a wreck the Statute at Westm 1. declareth viz. where the ship so perisheth that nothing therein escapeth alive and these are rather in their originall committed to the King as a curator then given him as a proprietor although that custome hath since setled a kind of right which may perhaps be accounted rather a title by estoppell For the fundamentall ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appeare Marlb cap. 17. The heire in Socage tenure shall have an action of waste and an accompt against his guardian for the profits of his lands and mariage The heire in Socage being under age shall also be under custody of such guardian of the next kindred Bracton lib. 2. cap. 37. who cannot challenge right of inheritance in such lands so holden as if the Lands descended from the father side the mother or next of the kindred of the mothers side shall have the custody and so if the Lands descend from the mother the father or next kindred of the fathers side shall have the custody And this custody bringeth with it an authority or power onely and no right as in case of the heire in Knightservice and therefore cannot be granted over as the wardship in Knightservice might but the guardian in Socage remaineth accomptant to the heire for all profits both of land and marriage The full age of tenant in Socage is such age wherein he is able to doe that service which is 14 yeeres for at such age he may b able by common repute to ayd in tillage of the ground which is his proper service But the sonne of a Burgesse hath no set time of full age but at such time as he can tell money and measure cloath and such worke as concerne that calling Merton cap. 1. Widdows deforced of their Dower of Quarentine shall by action recover damages till they recover their Dower cap. 2. They shall also have power to divise their crop arising from her Dower Bract. lib. 2. cap. 40. It was used that the heire should have the crop with the Land but this Statute altered that former usage and yet saved the Lords liberty to distraine if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy West 2. cap. 24. and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilfull in the Law It was none of the meanest liberties of the freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no lesse a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wils and not of the Laws of the Kingdome M. Paris addit Artic. 44. as the complaints of the Clergy in the times of Henry the third doth witnesse Neverthelesse because many mens cases befell not directly within the Letter of any Law for remedy and yet were very burdensome for want of remedy it s provided by this Law that in such emergent cases that doe befall within the inconvenience shall likewise be comprehended within the remedy of that law Aide to make the sonne of the Lord a Knight West 1. c. 36. and to marry his eldest daughter shall be assessed after the rate of twenty shillings for a Knights fee and twenty shillings for twenty pounds in yeerely value of Soccage tenure The uncertainties of ayds are by this Law reduced and setled as touching the summe and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular summe hereby but also the age of the sonne when he was to be made a Knight viz. at the age of fifteen yeeres too soon for him to performe Knightservice but not too soone for the Lord to get his money And the daughter likewise was allowed to be fit for marriage at seven yeeres of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gaine that made the Law and it was not amisse to have the ayd beforehand though the marriage succeeded not for many yeeres after and if the Lord died in the interim the executors having assets paied it or otherwise his heire CHAP. LXVIII Of Courts and their proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of latter birth albeit even they also have been of ancient constitution and divers of them itinerant also and some of them setled in one place The worke of the Justices itinerant was universall comprehending both matters of the Crown and Common-pleas That of oyer and terminer is onely of Crown pleas originally commenced and inquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large worke that is to deliver the Gaols of all criminall offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognisance of Common pleas onely and for the most part are but fo inquiry All which saving the Justices itinerant in ancient use were instituted
King and complained of that summons as of a common grievance be cause that neither they nor their ancestors were bound to serve the King in that Countrey and they obtained the Kings discharge under his broad Seale accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmaine Stat. Mortm 7 Edw. 1. which was made within the compasse of these times by which it was provided that in case Lands be aliened contrary to that Statute and the immediate Lords doe not seise the same the King shall seise them and dispose them for the defence of the Kinodome viz. upon such services reserved as shall suite therewith as if all the service of a Knight must conduce thereto and that he is no further bound to any service of his Lord then will consist with the safety of the Kingdome This was the doctrine that the sad experience of the later government of Kings in these times had taught the Knighthood of England to hold for the future ages Stat. de Militibus No tenant in ancient demesnes or in Burgage shall be distraimed for the service of a Knight Clerks and tenants in Socage of other Manors then of the King shall be used as they have been formerly Tenants in ancient Demesne and tenants in Burgage are absolutely acquitted from forraine service the one because they are in nature of the Kings husbandmen and served him and his family with victuall the other because by their tenure they were bound to the defence of their burrough which in account is a limbe or member of the Kingdome and so in nature of a Castle guard Now as touching Clerks and tenants in Socage holding of a subject they are left to the order of ancient use appearing upon record As concerning the Clergy its evident by what hath been formerly noted that though they were importunate to be discharged of the service military in regard that their profession was for peace and not for blood yet could never obtaine their desire for though their persons might challenge exemption from that worke yet their Lands were bound to finde armes by their deputies for otherwise it had been unreasonable that so great a part of the Kingdome as the Clergy then had should sit still and looke on whiles by the law of nature every one is engaged in his own defence Nor yet did the profession of these men to be men for peace hold alwaies uniforme some kind of warres then were holden sacred and wherein they not onely adventured their estates but even their own persons and these not onely in defensive way but by way of invasion and many times where no need was for them to appeare Tenants in Socage also in regard of their service might plead exemption from the warres For if not the plough must stand still and the land thereby become poore and lean Neverthelesse a generall service of defence of the Kingdome is imposed upon all and husbandmen must be souldiers when the debate is who shall have the Land in such cases therefore they are evocati ad arma to maintaine and defend the Kingdome but not compelable to forraine service as the Knights were whose service consisted much in defence of their Lords person in reference to the defence of the Kingdome and many times policy of warre drew the Lords into Armes abroad to keepe the enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Footmen in their Armies Concil Brit. 406. but the better and more wealthy sort of them found armes of a Knight as formerly hath been observed yet alwaies under the pay of the common purse and if called out of the Kingdome they were meere voluntiers for they were not called out by distresse as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law neverthelesse remaining still intire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword for though Kings pretended danger to the publique often times to raise the people yet the people would give credit as they pleased or if the Kings title were in question or the peoples liberty yet every man tooke liberty to side with that party that liked him best nor did the Kings proclamation sway much this or that way It s true that presidents of those times cry up the Kings power of arraying all ships and men without respect unlesse of age or corporall disability but it will appeare that no such array was but in time of no lesse known danger from abroad to the Kingdome then imminent and therefore might be wrought more from the generall feare of the enemy then from the Kings command and yet those times were alwaies armed in neighbouring Nations and Kings might have pretended continuall cause of arraying Secondly it will no lesse clearly appeare that Kings used no such course but in case of generall danger to the whole Kingdome either from forraine invasion as in the times of King John or from intestine broiles 21 E. 1. rot 81. as in the times of Henry the third and the two Edwards successively and if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that generall arrayes were not levied by distresse till the time of Edward the first 23 E. 1. Memb. 5. and then onely for the rendezvouz at the next Sea coast and for defence against forraine invasion in which case all subjects of the Kingdome are concerned by generall service otherwise it can come unto no other account then that title prerogative and therein be charactered as a tricke above the ordinary straine Fourthly those times brought forth no generall array of all persons between the ages of sixteen yeeres and sixty that was made by distresse in any case of civill warre but onely by Sheriffs Summons and in case of disobedience by summons to appeare before the King and his Councell which sheweth that by the common law they were not compelable or punishable Lastly though these arraies of men were sometimes at the charge of the King and sometimes at the subjects own charge yet that last was out of the rode way of the Subjects liberty as the subsequent times doe fully manifest And the like may be said of arraies of ships which however under command of Kings for publique service were neverthelesse rigged and payed out of the publique charge The summe of all will be that in cases of defence from forraine invasion Kings had power of array according to the order of Law if they exceeded that rule it may be more rightly said they did what they would then what they ought
should finde two compleat horses And another order of Aetheldred nigh 80 yeeres after differing from it assessed upon every eight hides of Land a Helmet and a coate of Maile and the Historian tels us that a Hide is a plough land Huntington An. 1008. Ll. Canut 97. or so much land as one plough can keepe in tilthe one whole yeere and the reliefe of the Noblemen of all sorts and ranks in Horses Helmets coates of Maile Lances Shields and Swords the meanest of all which degrees being called Mediocris Thainus yeelding a reliefe equall to the Armes of a Knight in the times whereof we now treat viz. one Horse one Helmet one coate of Maile one Lance one Shield one Sword all comprehended under arma sua as if he had a certaine proper Armes and the Laws concerning the forfaiture of Armes doe in effect affirme the thing viz. that all men were armed yet probable it is that Laws were not then so often made for the inforcing this or that particular sort of Armes in regard that till the Normans time this Island was troubled but seldome with any enemies from forraine parts that brought any new sorts of weapons into fashion the Danes and Norwegians being no other then an old acquaintance of theirs Neither were the Saxons as yet tamed by any enemy so farre as to begge a peace albeit that the Danes had gotten them under But after the Norman times the English being somewhat overmatched in warre inclined more to Husbandry and began to lay aside their regard of Armes and this occasioned the Kings to make assessments of Armes yet having regard to the ancient course of the Saxons saving that they urged the use of the Bow more then formerly was used and thereby taught the conquered to conquer the Conquerours in future ages Of these sorts of assessments before this Statute at Wintin I finde but two the first made by Henry the second and the other by Henry the third which together with that of this Statute I parallell thus together in their own words Hen. 2. Hen. 3. Stat. VVint.  Lands Goods  Knights fee 15 Librat 60 Marks 15 li. land 40 marks goods Loricam Caffidem Clipeum Lanceam Loricam Capellum ferri Gladium Cultellum Equum Loricam Capellum ferri Gladium Cultellum Equum Hauberk Shapell de fer Espee Cotell Chivall 16 Marks chatels rents 10 Librat 40 Marks 10 li. lands 20 marks goods Halbergellum Capelletum ferri Lanceam Halburgettum Capellum ferri Gladium Cultellum Halbertum Capellū ferreum Gladium Cultellum Hauberk Shapell de ferr Espee Cotell 10 marks chatels rents 100 s. 20 marks 100 s. land VVanbais Capelletum ferri Lanceam Purpunctum Capellū ferreum Gladium Lanceam Cultellum Purpunctum Capellū ferreum Gladium Cultellum Purpoint Shapell de ferr Espee Cotell  Betwixt 5 l. 40s 9 Marks Betwixt 5 l. 40 s.  Gladium Cultellum Arcum sagit Gladium Arcum sagit Cultellum Espee Arke setes Cotels  under 40 s. under 9 marks to 40 s. under 40 s.  Falces Gisarmas Cultellos c. Falces Gisarmas c. Faulx Gisarmes Cotells    under 20 marks goods    Espees Cotels I have thus impaled these three that the Reader may the better discerne how they relate each to other and so may the better understand the matter in the summe And I must explaine three or foure words in them as they are set down before I can bring up the conclusion because the mistake of the sence of the words hath made some mistake the intent of the thing and force the same to an unwarrantable issue Lipsius de milit Rom. lib 3. Dialog 6. Lorica signifies that piece of Armour that defends the breast or forepart of the body and sometimes is made of plates of Iron of which sort I conceive those of the old Germans were whereof the Historian maketh mention Tacitus pauces loricae he saith the Germans had few Armes of defence of their foreparts and fewer Helmets or Headpieces for otherwise if they had Iron defences for their heads they would not have been content with defences made of Lether for their foreparts as in the first rude times they might have been Ciuer Germ. p. 339. 34. Sometimes it s made of links of Iron and commonly is called a coate of Maile but I conceive it cannot be so meant in the assessments of Henry the second and Henry the third because that those of the second degree are said that they ought to keep Haubergettum or Halburgellum or Haubertum all which are but severall dialects of one name and are taken for a coate of Maile and therefore by the diversity of names in one and the same assessment I doe conclude that the Armour was not of one and the same fashion But it s evident that by Hauberk in the assessment of the Statute at Wint. is meant a coate of Maile and is never taken for a Brest-plate or Gorget as hath been taken upon trust by some that build more weighty conclusions upon that weake principle then its able to beare and for the truth hereof as the word is a French word so I appeale to all French Authors and shall not trouble the reader with the notation of the word or further about the meaning thereof In the last place as great mistake is that also of the word Shapell de ferr which is taken by some to betoken a brest-plate of Iron For the truth whereof the Reader may consider the Latine word Capellum or Capelletum and he shall finde that it is an Iron cap or an ordinary Head-piece and in the Assize of Henry the third it holds the place of Cassis in the Assize of Henry the second for the manner of all these let the Reader view the sculptures of the severall Norman Kings armed for the charge in the beginning of their severall reignes as they are represented in Speeds History It may also be conceived that there is as much mistake of that weapon which is called cultellum or cotell whiles they translate it by the word Knife for though it be true that it is one signification of that word yet it appeares not onely by this law that it was a weapon for a Knight in warre but in use at Torniaments as by that Statute that forbids the use of a pointed Sword or pointed Cottell a Battoone or a Mace at that sport and therefore it may seem to be some weapon of greater use either a Cotellax or such like weapon otherwise to enjoyn the finding of a Knife to a man as an offensive weapon against armed men in battell would serve to no use at all Now concerning the difference between the severall Assizes aforesaid it consisteth either in the number of the severall degrees or rankes of those that are assessed or secondly in the manner of their valuation or lastly in the particulars of their armes assessed upon them As
divers Lords the Lords by priority shall have the marriage West 2. cap. 16 These laws were in use during the reignes of those Kings although it can not be certainly concluded hereby that the wives portion properly belonged to the Lord as for his own benefit partly because the female Wards should have no advancement if it belonged to the Lords and partly because this forfeiture was given to the Lords in nature of a penalty as appeareth by the frame of the Statute of Merton cap. 8. Vide Stat. Merton cap. 1 2. Prerog Reg. cap. 4. Widdows shall have their Dower inheritance their inheritance which they have joyntly with their husbands their marriage freely and their Quarentine With due regard of the opinion of others I shall propound my own It seemeth to me that the King is within this Law as well as within the former lawes of the Normans and those of Henry the second that are of this kind and as he is within the compasse of every law of this Charter and that it is called the Grand charter as most immediately comming from the King to the people and not from the Lords Nor is there any ground that the Law should intend to give liberty to widdows of Wards belonging to inferiour Lords to marry whom they will and that onely the Kings widdows shall be bound Nor did this suite with the contest between the Barons and the King that their widdows should be bound unto the King and the widdows of their tenants discharged from their tuition and therefore I conceive by the word maritagium is not meant liberty of marriage but her marriage portion or rationabilis pars according to the foregoing Laws of Henry the first and Henry the second and the Saxon customes But as touching the liberty of marriage it is defined and expressed that the widdows shall not be compelled to marry neverthelesse if they shall marry they must marry with the Lords liking cap. 9. Glanvil lib. 7. cap. 12. otherwise he might have an enemy to be his tenant that might instead of homage and service prove traytour and be his ruine Lastly touching the widdows dwelling the law thought it unreasonable that she should immediately after the death of her husband be exposed to be harbourlesse and therefore ordained that she might continue in her husbands house forty daies if it were not a Castle and then she was to have another dwelling assigned to her because by common intendment she is not supposed to be a person meet to defend a castle and this was called her Quarentine which I met not with amongst the Saxon laws and therefore suppose it be of Norman originall No mans land shall be seised for debt to the King so long as the personall estate will satisfie cap. 10. Nor shall his pledge be troubled so long as the principall is sufficient unlesse he refuse to satisfie and then the pledge shall recover in value The first part hereof was the issue of the law concerning elegit formerly observed in the Saxons times for the regard of law principally extended unto the person next unto the free hold and lastly unto the goods The latter part of this law was the law of pledges or Decenners in the same times unto which the Reader may resort for further light herein The City of London and other Cities Burroughs cap. 11. and Towns and the Cinqueports and other ports shall enjoy their ancient liberties The whole Kingdome and the members thereof herein expressed had all their liberties saved from the dint of conquest by the law of VVilliam the first upon which although some of the succeeding Kings did invade Seld. Spicil fo 192. yet none of them made any absolute disseisin although disturbance in some particulars But King Iohn did not onely confirme them by his grand Charters but by particular Charters to each Corporation with some enlargements and in his grand Charter inserted one clause which in the grand Charter of Henry the third appeareth not which thus ensueth Et ad habendum commune concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis which if the barbarisme of the Latine mislead me not is thus in English And to have right of Common councell or to be of the Common councell of the Kingdome for the assessing of ayds other then in three cases aforesaid viz. for redemption of their captive King for Knighting of the Kings sonne and for his daughters marriage because these three might be due by the common Law the two latter by custome 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 onely in cases of generall assessements but shall leave it to the consideration of the Reader cap. 12. No distresse shall be taken for greater service or other mater then is due Distresses are in nature no other then a summons in act or the bringing of a man to answer by seisure 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 prevaile in the issue yet prevailed so farre as the defendant could not escape without charge and hindrance Glanvil lib. 12 cap. 9. therefore the law provided a Writ of remedy against unjust vexation which Glanvile remembreth us of and yet because that remedy also carried with it matter of charge and disturbance to the Plantiffe and so the remedy might be worse then 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 Stat. Marlbr cap. 1. Glanvil lib 9. cap. 1 8. it must not be taken but by leave from the Kings court unlesse in case of matters due by common right and upon complaint made by the plantiffe The King sent out a summons in this manner Henricus Rex Ang. Hominibus Abbatis de Ramsey salutem Gloss 215. Precipi oquod 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 Glanvil lib. 9. cap. 8. Stat. Marlbr cap. 2 3 4 15. the distresse never was done in an arbitrary way but by Judiciall act in the Lords Court Secondly no distresse for suite shall be made out of the fee nor against any person but such as are of that fee. Nor shall any distresse be made in