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
the Clergymens then his Richard was yet a greater burden his reigne was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his father be blotted out but it was more troublesome to the people because it cost so much treasure was mannaged by such ill governours except the Archbishop of Canterbury and was unsuccesfull in most of his undertakings yet never invaded the liberties of the Commons by any face of prerogative But what wanted in him was made compleat and running over in his successor John who to speake in the most moderate sence of his government being given over to himselfe when he was not himselfe robbed the Lords of their authority bereaved the Church of its rights trode under foot the liberties of the people wasted his own Prerogative and having brought all things into dispaire comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regaine and Iohn could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gaine where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant government such as all men might learne which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in government is the law and the execution the latter being the life of the former and that of the Common-weale I say not that the law was augmented in the body of it or that the execution had a freer course then in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousnesse for the first whereof we are beholding to Glanvile in Henry the seconds time and for the latter to King Iohn or rather the Barons in his time in the publishing of the grand Charter or an enumeration of the liberties or customes of the people derived from the Saxons revived continued and confirmed by the Normans and their successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King Iohn soon repented of his oath the bond of his consent and to heale the wound got the Popes pardon and blessing thereupon so easie a thing it was for a sonne of the Roman Church to passe for a good catholique in an unrighteous way The execution of the Law was done in severall Courts according to the severall kinds of affaires whereof some concerned matters of crime penalty and this touched the Kings honour and safety of the persons of himselfe and his subjects and therefore are said to be contra coronam dignitatem c. The second sort concerne the profits of the Crown or treasure of the Kingdome The third concerne the safety of the estates of the people These three works were appointed unto three severall Courts who had their severall Judges especially appointed to that worke Originally they were in one viz. in the supream Court of Judicature the court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of severall men that were men of skil in such affaires and yet retained the Supremacy in all such causes still And because that which concerned the publique treasure was of more publique regard then the other the deputation thereof was cōmitted probably to some of their own members Gloss who in those daies were Barons of the Realm and afterwards retained the title but not the degree and therefore were called for distinction sake Barons of the Exchequer The particular times of these deputations appeare not clearly out of any monument of antiquity neverthelesse it s cleare to me that it was before Henry the seconds time as well because Henry the first had his Judex fiscalis Ll. Hen. 1. c 24. as Glanvile so frequently toucheth upon the Kings court of pleas which cannot be intended at the court of Lords for that in those daies was never summoned but in time of Parliament or some other speciall occasion but more principally because the Historian speaking of the Judges itinerant reciteth some to be of the common pleas Hoveden which sheweth that there was in those daies a distinction of jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advise of the Parliament after that the grand councell of Lords was laid aside by Kings and a Privy councell taken up unto whom could not regularly belong any juridicall power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime title of chiefe Justice who then was called Lord chiefe Justice of England and whose Office was much of the nature of the Kings Lieutenant in all causes and places as well in warre as peace and sometimes was appointed to one part of the Kingdome and by reason thereof had the name onely of that part and some other of the other parts The greatnesse of this office was such as the man for necessity of state was continually resident at the Court and by this means the Kings court was much attended by all sorts of persons which proved in after times as grievous to the King as it was burdensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergy as were also the under Officers of those courts for those times were Romes houre and the power of darknesse Other Courts also were in the countrey and were Vicontiel or Cours of Sheriffs and Lords of Hundreds and corporations and Lordships as formerly and these were setled in some place Hoveden but others there were which werr itinerant over which certaine Judges presided which were elected by the grand councell of Lords and sent by commission from King Henry the second throughout the Kingdome then devided into six circuits unto each of which was assigned three Justices so as the whole number of Justices then was eighteen The Office was before the comming of the Saxons over hither but the assignation was new as also was their oath for they were sworne But the number continued not long for within foure yeeres the King redivided the land into foure circuits and unto each circuit assigned five Justices making in the whole the number of twenty and one Justices for the Northern circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdome Hoveden 337. Ibid. 445. Neither yet did the first commission continue so long
lost man had lesse care of such smaller matters and therefore allowed that his Judges of Assizes should be licenced by the Archbishop to administer oathes in their circuits in the sacred times of Advent and Septuagessima Antiq. Brit. Eccles 209. and this course continued till Henry the eights time The Clergy having thus gotten the bridle gallop amaine they now call whom they will and put them to their oathes to accuse other men or themselves or else they are excommunicated Henry the third withstood this course if the Clergy mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the law holds its course and in pursuance thereof we finde an attachment upon a prohibition in this forme ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned Regist fo 36. and by Ecclesiasticall censures constrained Lay persons men or women to appeare before him to sweare unwillingly at the Bishops pleasure to the great prejudice of our Crown and dignity and contrary to the custome of the Kingdome of England And thus both King and Clergy were at contest for this power over the peoples consciences to which neither had the right otherwise then by rules of law Bigamists shall not be allowed their Clergie Stat. Bigam 4 Edw. 1. cap. 5 whether they become such before the Councell of Lions or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergy seemeth by this law that they had Clergy that were married once and againe and yet before and after the Councell were admitted as Clerks in the judgement of the Law But the Generall councell interposes their authority and deprives them that are the second time married of all their priviledges of Clergy It was it seemeth twenty yeeres and more after that Councell before the Church-men in England were throughly reformed for either some were still Bigami at the making of this law or as touching that point it was vaine nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whither this slow reformation arose from the defect in law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the canons of Generall councels Generall councels eo nomine had formerly of ancient times gotten a kind of praeeminence in this Nation but by what meanes is not so cleare In the Saxon times they were of no further force then the Great councell of this Kingdome allowed by expresse act For the Nicene faith and the first five Generall councels were received by Synodicall constitutions of this Kingdome made in the joynt meeting both of the Laity and Clergy and during such joynt consulting the summons to the Generall councels was sent to the King to send Bishops Abbats c. but after that the Laity were excluded by the Clergy from their meetings and the King himselfe also served in the same manner the summons to the Generall councell issued forth to the Bishops immediately and in particular to each of them and to the Abbats and Priors in generall Bineus tom 13 Ps 2. pag. 674. M. Paris by vertue whereof they went inconsulto Rege and sometime Rege renitente and appeared either personally or by proxy Others came as parties to give and receive direction or heare sentence in matters tending to spirituall regards and for this cause issued summons sometimes even to Kings as at the councell of Lions aforesaid it s said that the Pope had cited Reges terrae alios mundi principes dictum principem meaning Henry the third M. Paris An. 1245. the matter was for assistance to the holy warre and to determine the matter Henry the third and his Clergy men And as in that case so in others of that kind Kings would send their Embassadours or Procters and give them power in their Princes name interessendi tractandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concerne fidei orthodoxae fulciamentum Bineus Tom. 3. Ps. 2. pag. 913. Tom. 4. Ps. 1 pag. 14. Regumque ae principum pacificationem or any other particul r cause which occasionally might be incerted so long then as Kings had their votes in the Generall councels they were ingaged in the maintenance of their decrees and by this meanes entred the Canon law into Kingdomes Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into forraine parts where the Generall councels were holden and that it was thrift for them to send such proctors that might not altogether spend upon the Kings purse allowed Bishops and Clergymen to be Proctors for their Princes that in the negative they might be pii inimici and lesse active but in the affirmative zealous and so make the way wider by the Temporall and Spirituall vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the ingagement and respect which these his proctors had in councels they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Neverthelesse the case sometimes was such as could not expect favour and then as the Kings temper was they would sometimes ride it out with full saile and to that end would either joyn with their Ecclesiasticall Proctors some of the Barrons and great men of their Realme to adde to the cry and make their affaires ring louder in the eares of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to looke to the rights of the Crown as Henry the third did at the councell at Lions and this sounded in nature of a protest Foxe Mart. Ps. 2. 263. and within the Realm of England had the force of a proviso or saving But if the worst of all came to passe viz. that the councell passed the cause against Kings without any inhibition or injunction yet could it not bind the law of the Land or Kings just prerogatives no not in these times of Romes hower and of the power of darknesse For at a Synod holden by Archbishop Peckam An. 1280. the acts of the Councell of Lions was ratified and amongst others a Canon against non residency and pluralities and yet neither Councell nor Synod could prevaile for in Edward the seconds time an Abbat presenting to a Church vacant as was supposed by the Canon of pluralities the King whose
unlesse as their ancesters with weapons in their hands nor worthy of the presence of a King under other notion then as a Generall in the field and themselves as Commanders that are never a la mode but when all in Iron and Steele I say to make a Law that must suddenly binde men from riding or being armed when no man thought himselfe safe otherwise was in effect to expose their bare necks to the next turne of the Sword of a King that they did not overmuch trust and the lesse in regard he trusted not them I doe not wonder therefore if the Parliament liked not the worke but left it to the King to provide for the keeping off breaches of the peace and promised there assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the first yet it was not to all intents nor did it continue for besides the Statute of Torniments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probabilty was made after that law last before-mentioned the Statute at VVinton made after this Law nigh six yeeres space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said act And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chiefe moderatorship of warre and peace within the Realm of England resteth hitherto upon the Parliament next under God and in the King no otherwise then in order to the publique the rule whereof can be determined by no other Judge then that which can be intended to have no other respect then the publique good and which is the abridgement of the large volume of the Kingdom A summary conclusion ANd thus have I brought the shape of English government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish tempests the rocks of Norman invasion and the Quicksands of Arbitrary government under Popes and Kings to the Haven much defaced it is I confesse by the rage of time and yet retained the originall likenesse in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over free men Then by flattering of the free men into their designes hovered above them all but not being able to maintaine their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious then others and they againe more populer then them seeke severall interests And thus Kings aided by their party to a Supremacy which they were never borne to and it by them into a preheminence above their Peeres which neither law nor custome ever gave them are of Moderators in the Councell of Lords become moderators of those Councels and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the free men by extorsion and opression as Lords over tenants yet could they never prevaile over them as free born subjects to gaine their consent to give their right or the law up to the Kings beck but still that remained arbiter both of King and people and the Parliament Supreame expounder and Judge both of it and them Other argument hereof there will be little need Bract. lib. 2. c. p. 16. besides what hath formerly appeared then what we finde in Bracton who wrote in the time of Henry the third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earles and Barons Earles according to their name Comites are the Kings associates and he that hath an associate hath a master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unlesse they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the State of an English King in Henry the thirds time I shall adde hereto a concurrent testimony of a Lawyer also in Edward the first time Although saith he the King ought to have no equall in the Land Miror Just p 9. yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and party the King by right ought to have companions to heare and determine in Parliament all VVrits and plaints of wrongs done by the King the Queen or their childrsn and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it selfe unto which the Royall assent was added Edw. 2. and the same sealed with an Oath in the solemne stipulation made by Kings at their Coronation with the people then present in the name of the whole body the summe whereof is wont to be propounded to the King in this manner Remonstr Parliament novem l. 2. An. 1642. though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customes to them granted by the ancient Kings of England your righteous and godly predecessours and especially to the Clergie and people by the glorious King St. Edward your predecessour The Kings answer I doe them grant and promise 2. Will you keep to God and the Church and the Clergie and the people peace and concord sincerely according to your power The Kings answer I will doe it 3. Doe you grant to hold and keep the Laws and rightfull Customes which the Comonalty of your Realm shall have chosen and to maintaine and inforce them to the honour of God after your power The Kings Answer I this doe grant and promise In few words the King promised to keep the lawes already made the peace of his Kingdome and the Laws to be agreed upon by the commonalty the same in subsistance with that of Henry the first VVilliam the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chaine of Gold a serious memoriall of the Kings duty as he is a man and a glorious ornament to him as a King If then the King be under the law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peeres Hitherto certainly an English King is but Primus inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to worke the people to
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
passe before the party was indicted Stat. de asport relig 35 E. 1. No religious House shall be charged with taxe to any superiour without the Realm of England nor shall send to any visitation out of England This was neither at the request of the Clergy nor act of kindnesse intended unto them but for the good of the Kingdome to prevent the bleeding of the treasure of the Kingdome into forraine parts Mag. carta cap. 35. Patrons of Abbies shall have their custody during their vacancies This was the ancient Law now revived by the Clergies consent and intended for the safegard of the Revenues of the Houses and their maintenance and therefore it s with a sicut superius dictum est cap. 5. Stat. de prisis Edw. 2. The goods of the Clergy freed from purveyance unlesse they will It was a favour given by Edw. 2. to the Clergy to gaine their good will after the death of Gaveston the shamefull defeat received in Scotland and some particular testimonies of Gods displeasure whereof he began to be somewhat sensible Stat. de quo Warranto 18 Edw. 1. Franchises holden by prescription or charter confirmed and trials by Quo warranto allowed to be in eyer It was the common share of the great men but especially of the Clergy to have their franchises exposed to the prey of the Eagles or to such as hauked for them and its likely the King had not so easily forgone his prise if all the fat had faln to his own share but perceiving that more benefit came to his instruments then was meet and himselfe little the better thereby he sacrificed his Judges to the people but it was to his own behoofe and so gained both credit and favour from the people and profit to himselfe and in some measure satisfied the 48 49 50. Articles of the Clergies complaint in the time of Henry the third and the 15th Article of their last complaint Lands or Tenements aliened to a Religious house shall escheate to the Lord Mag. carta cap. 37. if the alienor take the same backe to hold of that house The ground hereof principally was the prejudice done to the Lord by destruction of the tenure albeit that it had been an ancient grievance complained of in the Saxon times that the Clergy were covetous and swallowed down estates and thereby weakned the Kingdome But now they are become even cheaters serving the turnes of treacherous tenants that would give their Lands by compact with the Church men to receive them againe from them to hold of the Church which was a liberty that men thirsted after in those times wherein the Church men were more adored then their Images Bracton lib. 1. fo 13. Coke 2. instit super Magna carta cap. 36. p. 74 75. Bracton lib. 2. cap. 10. fo 27. It seems this Law was made after Bractons time if that be true in the second institutes for he saith that a man may give his lands to any one whether Christian or Jew or religious person and nothing shall hinder it but the speciall reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his tenure albeit the gift be in free almes Neverthelesse it seemeth to be such restraint as the Templers and Hospitallers were faine to find out a new way which was to protect mens tenements from execution of law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. Stat. West 2. cap. 33. provided a law to make this also in nature of a Mortmaine within the Statute made in the seventh yeere of his reigne called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmaine the Lord should have liberty to enter if he failed then the Lord paramont Stat. de Religiosis 7 E. 1. or if he failed the King should enter and dispose of the same and that no licence of Mortmaine should be sued out but by the mean Lords assent and where part of the premises remaine still in the Donor and the originall Writ mentioneth all the particulars And thus at length was this issue for the present staied which hitherto wasted the strength of the Kingdom Stat. de Amortizandis terris M. West An. 1280. Mag. carta cap. 39. and by continuall current emptying it into the mare mortuum of the Clergy consumed the maintenance of Knight service by converting the same to Clerk-service No Iudge shall compell a free man to make othe without the Kings command Miror Just cap. 5. sec 3. So is the sence of the law rendred by an ancient authour and I hope I shall not wrong the Text if I affirme that the Ecclesiasticall Judge was included within the equity though properly he be not Balivus for the Law intends to shew that its a liberty that the subject hath not to be compelled to take oath without the Kings especiall command and by consequence it sheweth also that the King at that time and untill then had the directory of oathes for it was an ancient liberty given in the Kings charters unto such as they pleased viz. to impose oathes Malimsb de gest Reg. lib. 2. and to punish for breach of oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abby of Glastenbury amongst other Athas Ordulas and the Churchmen that first procured vacations from suits of law during holy times procured a law also to be setled by Edward the Saxon King and Gunthurne the Dane Ll. Edw. cap. 9. that Ordeale and oathes should be forbidden upon the holy Feasts and lawfull fasts And a wonder it is how it escaped the gripe of the Clergy so long who catched at any thing that had but a glance of Gods worship in it And if this were the subjects liberty not to be compelled to sweare surely much more not to be compelled to accuse himselfe unlesse by the law he be especially bound Bracton lib. 3. cap. 7 fo 106. for it is Glanviles rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curiae But the power of the Clergy now was grown strong and they begin to remember themselves and that oathes are of a holy regard and they men for holinesse best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claime and to make a sure title they get a grant from Pope Innocent to Steven Langton Archbishop of Canterbury of a faculty of licencing administration of oathes during the time of Lent and he accordingly enjoyed it during the mad time of Henry the third But Edward the first quarrelled it and left it questionable to Edward the second who being in his condition as a
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
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
touching the degrees in Henry the seconds time they were but three in regard that he onely assessed free-holders and certainly that was the ancient Law as by the law of the Conquerour and other Saxon laws formerly mentioned may appeare But Henry the third taking example of King Iohn who was the first founder of generall arrayes charged all but such as were men of nothing albeit I finde not that such as were of the inferiour degree were sworn to those Armes but rather allowed to have them And though the Statute at Winchester holdeth to the same degrees in Lands yet in the valew of goods there is some difference in favour of them that onely have stocke and no freehold Secondly there is some difference in the manner of valuation of Lands with Chattels and therein the Statute at Winton favours the personall estates more then Hen. 3. and he more then Hen. 2. and yet all of them pretend one rule of ancient custome I believe they mean that they had it in their eye but not in their heart for they would come as nigh to it as they could and yet keep as farre from it as they durst Thirdly as touching the difference of the Armes between these three assessments it seems so small as in this they are most of all one For wherein Hen. 2. leads both Hen. 3. and Edw. 1. doe imitate saving that they adde the Horse and Sword which questionlesse was to be understood as a granted case that the compleat Armes of a man could not be carried and mannaged without a Horse nor defended without a Sword As touching other alterations it might be done upon good advice as not being deemed meet that such as were no Knights but in estate should be armed in every respect like as the Knights were And thus we have an ancient custome of maintaining Armes by every free man for the defence of the Kingdome first made uncertaine by the avarice of Kings and negligence of the free men and brought into an arbitrary charge at length reduced to a certainty upon all sorts of inhabitants by a Statute law if so it then were unto which every man had yeelded himselfe bound by his own consent But to what end is all this I said it was for the defence of the Kingdom and so it was in the originall and yet also for the safety of the King in order thereunto and for the safety and maintenance of the peace of every member of the whole body This in one lumpe thus will not down with some who will have this assessment onely to be for keeping of the peace against routs and riots but not sufficient not intended to be supply for warre when Edward the first cals for it because Edward the first shall not have his power confined within the compasse of a Statute but to be at liberty of array as he should think meet and it s not to be denied but the words of this Law runne thus viz. That the intent thereof is for preserving of the peace but those generall words will not beare the power of a restrictive sence for certainly the peace is as well preserved by providing against warre as against riots and against forraine warre as intestine mutinies and that the Statute intended the one as well as the other will appeare because it was made in relation to former presidents of Henry the third and they speak plainly that their intent was to strengthen the Kingdome against dangers from abroad the words of the Historian are cleare that Henry the third charged all that had 15 libratas terrae and upwards should undertake the Armes of a Knight ut Anglia sicut Italia militia roboraretur M. Paris fo 926 And because he had threats from beyond Sea by the defection of the Gascoines therefore he caused Writs to issue forth throughout the Kingdome that secundam pristinam consuetudinem M. Paris fo 864 assessement of Armes should be secundum facultates and in one of the Writs published by the Historian the expresse assessment of Hen. 3. formerly mentioned is particularly set down Vid. post Adversaria M. Paris Nor are these Armes thus assessed so slight as men would pretend for the Armes of the first ranke were the compleat Armes of a Knight and their estates equall thereunto for those 15 libratae terrae amounted unto 780 acres of Land as the late publisher of Paris his History hath it and is very nigh the reckoning of Henry Huntington who as hath been mentioned layeth a Helmet and coate of Maile unto eight hides of Land which according to Gervase of Tilburies account commeth to 800 acres Cap. penalt every Hide containing one hundred acres These therefore were better then Hoblers And the succeeding ranks found Armes also proportionable to their estates as considerable as the times could finde for such as were of constant use and might be supplied with other weapons as occasion served and as they might be of most benefit for the service Furthermore whereas it s said that the wisdome of the Parliament might be questioned if they intended no better provision against an enemy then against a thiefe or rogue I should desire the consideration of those men whether are those thieves and rogues in Troops or bodies and well armed or are they a sort of scattered out-lawes lightly armed to flie away when they have have gotten the prey If they were in the former posture I pray what difference in point of difficulty of suppressing between them and so many enemies and if it was discretion in the Parliament to make this provision against the one certainly these with the Knighthood of the Kingdome with as much discretion will be sufficient provision against the other But if these be looked upon in the latter sence I feare the discretion of the Parliament would have been much more questioned in arming all men that have any ability to suppresse Thieves and Rogues against which the ordinary watch and ward of the Kingdom was an ancient and approved remedy and sufficient safeguard And I would fain know of these men whither it be for the safety of Edward the first or any other King to arme the whole body of the people especially in times of jealousie for suppressing of Thieves and Robbers when as it may be done by a guard of known men in every County with much more ease and lesse charge to the people Lastly whereas it s endeavoured to make this Statute but a temporary provision and taken up for the present condition of affaires when Thieves and Robbers went with great strength and in multitudes This might be I grant of some efficacy if it had been introductio novi juris but it being grounded upon a former custome the ground of that custome which was defence of the Kingdom must be the warrant of the Law otherwise the present inconvenience might be remedied by a present order and needed not the help of a Law that should rest upon former custome
or provide for future generations Neverthelesse if all be granted viz. that this Statute is but a present order that the Armes therein are too slight to resist an enemy and the end thereof was onely to enable the Kingdome against Thieves and Robbers yet could not Edward the first pretend to have any power to assesse Armes at pleasure upon occasion of warre for the defence of the Kingdome nor is there any president in story that countenanceth it seeing Henry the third and Henry the second in their course used the rule secundum facultates as had been formerly observed and the rule foregoing tended onely to freemen and their Lands Nor did King John disclaime the same but pursued it and yet if there be any president of prerogative in story which King John had not that King will be looked upon as a King of wonderment I say King John pursued it when he was in the strength of his distemper threatned by the Pope provoked by the French King now ready in the field vexed by his people and himself scarce himselfe summons to defend himselfe themselves M Paris An. 1213. and the Kingdome of England all men that ought to have Armes or may have Armes and such as have no amres and yet arma habere possint let them also come ad capiendum solidatas nostras and accordingly there came a vast number not onely of the Armed men but of the unarmed multitude who afterward were sent to their own home when victuals failed Hitherto therefore King John not above three yeeres before his death held himselfe to the assessment to Armes onely of such as had Lands and at this time of exigency others unarmed were summoned to take Armes from the King with their pay or otherwise they must fight without weapons I am now come to the last generall point which concerneth the executive power of matters concerning the peace within this law touching which the Statute inforceth this that Constables in every Hundred and Franchise shall have the view of Armes and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy whereby it seemeth manifest that hitherto no law or custome was made against any for default of Armes but onely such as held by that tenure and therefore they had a shift to cause them to sweare to maintaine Armes and so might proceed upon defaults as in case of perjury and that the Parliament was still loath to set any certaine rule for penalty and absolutely declined it and left it under a generall periculo incumbente which its likely men would rather eschew by obedience then adventure upon out of a daring spirit unlesse their case was very cleere within the mercy of common reason and therefore such cases were left to speciall order of the Parliament rather then they would deliver such a rod as determining power was over into any uncertaine hand what ever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments order into the directory of Edward the first which thing reacheth farre for then in order thereunto the whole Militia of the Kingdome must have been under his safe command and whether it ever entred into the conceipt of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to us viz. Edw. 1. and from us by our Royall Seignory to defend force of Armes and all other force against our peace at all times that we shall please and to punish according to the laws and usages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound us to ayd as their good Lord alwaies when need shall be Two things are concurrant with this which is the body of the Statute if such it be the one is the preface or the occasion and the second is the conclusion upon the whole body of the same The preface first set down the inscription or direction of the Law not to the people but to the Justices of his bench and so it s in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certaine persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earles and Barons that in all Parliaments treaties and other assemblies which shall be had in the Kingdome of England for ever after all men shall come thereto without force and without Armes well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earles Barons and Cominalty being assembled to advise upon this matter nous eiont dit saith one coppy and nous eions dit saith another coppy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principall one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the bench and there enrolled and this is dated the 30. of October in the seventh yeere of his reigne which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon record in nature of a claime or protestando for saving the prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his owne that it might be more carefully nursed against the blast of time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civill affaires and so referred it to the Kings care to provide against imergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suite with the posture of affaires then in course for the Welsh warres were now intermitted and a quiet of three yeeres ensued in the middest of which Souldiers having liberty to doe nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsell