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
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
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
of their estates as well reall as personall especially in the particulars ensuing The most ancient of all the rest was the First-fruits First-fruits which was by way of eminency called Cyrick-sceate or in more plaine English Church-fee which was alwaies payable upon St Martins day unto the Bishop out of that house where the party did inhabit upon the day or Feast of the Nativity Concil Brit. p. 185. An. 693. Concil Brit. p. 545. It was first granted by Parliament in the time of King Ina and in case of neglect of payment or deniall it was penall eleven-fold to the Bishop besides a fine to the King as was afterwards ordered by Canutus Tythes Concil Brit. p. 298. An. 787. After the first fruits commeth to consideration the Revenue of Tithes whereof I finde no publique act of state to warrant till the Legatine councell under Offa although the Canon was more ancient The Bishop at the first was the generall receiver as well of these as of the former and by him they were divided into three parts and imployed one to the poore another for the maintenance of the Church Concil Brit. 259. and a third part for the maintenance of the Presbyter But in future times many acts of state succeeded concerning this Ingulsus amongst which that grant of Athelwolfe must be a little paused upon Some writers say that he gave the tenth mansion Gest pontif Lib. 2. cap. 2. and the tenth of all his goods but Malmsbury saith the tenth of the hides of Land but in the donation it selfe as it s by him recited it s the tenth mansion But Math. Westm understands that he gave the tenth part of his Kingdome An. 854. but in the Donation by him published it is decimam partem terrae meae In my opinion all this being by tradition little can be grounded thereupon The forme of the Donation it selfe is uncertaine and varions the inference or relation more uncertaine and unadvised for if the King had granted that which was not his owne it could neither be accounted pious or rationall Nor doe we finde in the donation that the King in precise words gave the Land or the tenth part of the Land of his Kingdome but the tenth of his Land in the Kingdome and the exemplification published by Math. Westm countenanceth the same albeit the Historian observed it not but suppose that the Kingdome joyned with the King in the concession and that it was the course to passe it onely in the Kings name yet could not the tenth Hide tenth Mansion or tenth part of the Kingdome be granted without confusion in the possessions of the people for either some particular persons must part with all their possessions or else out of every mans possession must have issued a proportionable supply or lastly a tenth part of every mans possession or house and land must be set forth from the rest or some must lose all and become beggars to save others all which are to me equally improbable Neverthelesse I doe not take the thing to be wholy fabulous but may rather suppose that either a tenth was given out of the Kings own Demesnes which is most probable or else the tenth of the profits of the Lands throughout the Kingdome and that it was by publique act of state and that clause forgotten by Historians Concil Brit. p. 392. An. 905. Ibid. 527. An. 1009. And thus might a good president be led to Alfred Athelstan and other Kings who setled Lawes under payment of penalties and appointed the times of payment viz. the small Tithes at Whitsuntide and the great Tithes at Alhollantide Another Tribute was that of Luminaries Luminaries Concil Brit. p. 377. Ibid. 545. An. 1032. which by Alfred and Gunthrun was first setled by Law although it had been before claimed by Canon It was payable thrice a yeere viz. Hollantide Candlemas and Easter at each time a halfe penny upon every Hide of Land and this was under a penalty also Ploughalmes An. 905. Another Income arose from the Plough and under the name of Plough-almes at the first it was granted by Edward the Elder generally and the valew was a penny upon every plough and in after times it was ordained to be payd fifteen daies after Easter An. 1009. Souleshot Concil Brit. d. 571. An. 1009. Next comes a fee at the death of the party which was commonly called Soul-shot and payd before the dead body was buried unto that Church where the dead parties dwelling was so as they never left paying and asking so long as the body was above ground and its probable turned into that fee which was afterward called a mortuary The incumbent also of every Church had Glebe laid to the Church Glebe Concil Brit. 260. An. 750. besides oblations and other casuall profits as well arising from houses bordering upon the Church as otherwise All these foure last were payable to the Priest of that particular Congregation and had not their beginning till Parishes came to be setled Peterpence Lastly the zeale of the charity of England was not so cold as to containe it selfe within its own bounds they were a dependent Church upon Rome and their old mother must not be forgotten An Almes is granted for under that lowly title it passed first but afterwards called Romscot or Romesfeogh or Heord-penny for it was a penny upon every hearth or chimney payable at the Feast of St Peter ad vincula and therefore also called Peter-pence it was for the Popes use and was setled under great penalties upon the defaulters It arose by degrees and parcels Concil Brit. p. 230. An. 725. for first Ina the Saxon King granted a penny out of every house in his Kingdome after him Offa granted it out of every dwelling house that had ground thereto occupied to the yeerely valew of thirty pence Concil Brit. p. 311. An. 791. excepting the Lands which he had purposed for the Monastery at St Albans This Offa had a much larger Dominion then Ina and was King over three and twenty shires after whom Aethelwolfe passed a new grant thereof out of his whole Kingdome Ibid. 343. An. 847. which was well nigh all that part which was called Saxony with this proviso neverthelesse that where a man had divers dwelling houses he was to pay onely for that house wherein he dwelt at the time of payment Ibid. 621. Afterward Edward the Confessor confirmed that Donation out of such Tenements as had thirty pence vivae pecuniae If then it be granted that the Saxon subjects had any property in their Lands or tenements as no man ever questioned then could not this charge be imposed without the publique consent of the people and then the assertions of Polidore and the Monks who tell us that Ina and Offa had made the whole kingdome tributary to Rome must needs be a mistake both in the person and the nature of the gift seeing
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
particular natures of each may be observed in the Glossaries All of them being allowed to the Crown by the Law and by the advice of the Councell of Lords granted over to these Grantees in nature of Deputies to the King to possesse both the power and profit thereto belonging CHAP. XXXI Of Manors NEverthelesse most of these liberties if not all of them were many times granted by Kings as appendent to Manors which were Francheses of smaller circuit being at the first portions of ground granted to some particular persons and by them subdivided and granted over to particular persons to hold of the Grantors by rents services and suit to one Court all being no other then the spoiles of warre and rewards of valour or other service These in their collective nature are called a Manor and by continuance of time become a kind of body politique In antiquity it s called Mansum from the mansion house although it is not of the Essence of a Manor Bracton fo 212 nor ought the words of Bracton to be construed according to the literall sence for the house may be destroyed and yet the Manor continue and the ground was granted in tenure before any house built thereupon The quantity of the ground thus given to hold by service was according to the pleasure of the Lord more or lesse and therefore might extend into divers Parishes as on the other part one Town might comprehend divers Manors Flera lib. 4. cap. 15. The Estate that was granted depended partly on the condition of the Grantee for some were servi or bondmen and their Estate was altogether at the will of the Lord as was also the benefit but the servants merit and the Lords benignity concurring with some conscience of Religion as the light grew more cleare abated the rigour of the tenure into that which we now call Copyhold Other Estates were made to the Free men which in the first times were onely for yeers albeit therein they were not niggardly for they sticked not at Leases for a hundred yeeres Ingulsus Croyl yet with a render of rent which in those daies was of Corn or other Victuall and thence the Leases so made were called Feormes or Farmes which word signifieth Victuals But times ensuing turned the victuall into money and terms of yeers to terms of life and inheritance retaining the rents and those called Quit rents or the rents of those persons that are acquitted or free Gloss 158. Ll. Saxon 16 17. Lamb. Gloss 348. Ll. Canut p. 1. cap. 69. But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a reliefe which were not left to the will of the Lord but was put in certainty in the very letter of the Law for according to each mans degree such was his reliefe or heriot But over and above all they reserved speciall service to be done by the person of the Tenant or some other by his procurement of which those that were their servi or villains were at the will of the Lord others had their particular service set down in their grants Knight-service These concerned either warre or peace the former was afterwards called the service of the Knight or Souldier the later the service of the Husbandman or Plough That of the Souldier was the more honourable and suitable to the old German trade Pigrum iners videtur sudore acquirere quod possis sanguine parare Tacitus and the worke was to defend the Kingdom the Lords person and honour and to this end he was ever to have his weapons in readinesse which gave name to the service and altered as times and customes changed This service by custome from a worke degenerated into the bare Title and became a dignity and the men named or rather entituled Milites and many of the Saxon charters were attested by men bearing that Title yet the service it selfe was farre more ancient and called servicium loricae of which sort also were the Custodes pagani that wore a Helmet a coat of Maile and a guilt Sword not unlike the old German way of calling forth of their Tirones to the war Tacitus Of this ranke some were more eminent then others for some bare the single title of Knight and it seemed served on foot Others served on horseback and were called Radknights or Knights riders as Bracton noteth Selden Spicil and these I take to be the Vavasours noted in the Conquerours Laws for that their reliefe is a Helmet a Cote of Maile a Shield a Speare and a horse Now for the maintaining of this service they had Lands and Tenements called Knights Fees which bound the owner to that service into whose hands soever they came to be done either by the person of the owner or other fit person by him procured and therefore were discharged from the payment of all taxes and tollage which was the Law of the Goths of old Co. Litlet 75. Bureus and remains in Sweden at this day The number of these Fees much increased so as in the Conquerours time they were above sixty thousand which was a mighty body for a small Island and brought much honour to the Nation But the profit arose from beneath Soccage tenure I mean from the soccage tenure or service of the Plough which in the first times was performed by those that were unfit for the service of the wars either being green and young or decrepet and aged Tacitus and sometimes by the women But after that the Saxon conquest was at a stop and that no more was to be gotten by blood men endeavoured to satisfie their desires by sweat and turned their Swords into Ploughshares and thus the Husbandry increased exceedingly and hath proved the best pillar of the Common-weale the nature of this tenure is fully set out by the Reporter Co. Litlet fo 86. Ll. Edw. c. 33. Spiceleg Ll. Edw. c. 33. nor can I adde thereto more then the Law of the Confessor concerning these men viz. that no man might trouble them but for their rent nor any Lord thrust them out of their Farme so long as they do their service and thus it appeareth that the service became in nature of a condition subsequent begetting an increaser of the Estate which by continuance wrought an inheritance and so the Title of Entry was turned wholly into distresses for service not performed yet the Lord was no looser thereby so long as Heriots Rents and Services accrewed unto him CHAP. XXXII Of Courts incident and united unto Manors BY grants made by Lords unto Tenants already noted the Lords had power by common right to call their Tenants before them and enquire concerning their payment of rents and performance of services which became Courts of constant appointment of which sort there were two one for the free men the other for the bond men and this brought forth an other service Court-leet
Ang. tit 6. Lindenbr as amongst the Angles it was a law that the inheritance should passe unto the issue males on the fathers side untill the fifth generation before any title could accrew to the issue female and then according to their Proverbe it went from the Lance to the Spindle But the Danes possibly might prevent this in the continuance thereof for they brought along with them that which was formerly the Saxon custome Ll. Sax. tit 7. ibid. Concil Brit. 333. which carried the inheritance unto the daughters upon the failing of the issue male as in the example of Cenedritha daughter to Cenulfus amongst multitudes of others may appeare Ll. Alured Sax. c. 7. But where Lands were conveyed by writing or act of the party it was a maxime that the will of the conveyor should be strictly observed nor could ever any one that came in by vertue of such writing ever alien the Land to crosse the currant of the originall conveyance The entailing of estates therefore was very ancient Plo. com 251. b. although by corrupt custome it was deluded as the Lord Dier in his argument of the L. Berklies case observeth Another custome of inheritance was catcht I know not how it s called Burrough English and by the name may seem to be brought in by some Cynicall odde Angle that meant to crosse the world and yet in a way not contrary to all reason for where nature affords least helpe the wisdome of men hath used to be most carefull of supply and thus the youngest became preferred before the elder in the course of descent of inheritance according to this custome There is no further monument of the antiquity hereof that I have met with then the name it selfe which importeth that it sprang up whiles as yet the names of Angles and Saxons held in comon cognisance might arise first from the grant of the Lords to their Tenants and so by continuance become usuall and by this means also might arise the custome of Copyholds of this nature so frequent especially in those Eastern parts of this Island where the Angles setled and from whom that part had the name of the East Angles Gavel kind Another custome of descent remaineth and that is to the children collectively and it s called Gavell kind or Gave-all kind and by the very name seemeth at the first to arise rather from the donation of the parent or other ancestor contrary to common custome then by common Law otherwise no need had been of an especiall name In the originall it seems it equally concerned all both sonnes and daughters as parceners and for want of such the brothers and sisters It seemeth to be first the Law of the Goths or Jutes Stephanus Dan. Burcus Suel for it remaineth in use in these parts of the Easterne Countries But in later times this estate was also tailed or cut out sometimes to the sonnes and daughters severally that is the sonnes or brothers to have two parts and the daughters or sisters one part other times to all the sonnes and for want of such to all the daughters and thus these courses of estates passed over Seas to the Southern parts of this Island where that people most setled in a double stream the first from the Athenians that loved the statelinesse of their families the other from the Lacedemonians who desired rather the continuance of their familes then their greatnesse Emmius Grec The manner of conveying of estates between party and party was either by act of the party executed in his life time Conveyances in writing or after his death such as were executed in the lifetime of the owner and were such as for the most part were in matters of great moment were estates passing by deed of conveyance in writing and for this way the Saxons were beholding to the Latines who taught them that course Ll. Sax. cap. 37. both for form and language and Alfred inforced it by a particular law viz. that all such as hold Lands by deed in writing should hold them according to the intent thereof and not alien the same contrary thereunto the intent thereof being proved by witnesses The nature of the conveyances in these ancient times may appear by a deed of the Kings of this Island about 400 yeeres before the Conquest whereby he granted foure plough lands in the Isle of Tenet unto an Abbesse wherin instead of that which we now call the habendum Habendum the words are contulimus possidendum c. after that followeth the uses of the deed tuo usui c. Vse and then concludes with a warranty Warranty in these words tu vero successoresque tui defendant in perpetuum nunquam me haeredesque meos contra hanc chartulam aliquando esse venturos the effect of which last clause may appeare by the Law of the sale of goods which in those times was that if the sale of goods warranted did not hold the losse should light upon the seller Ll. Inae c. 74. Ll. Sax. c. 24. Ll. Edw. c. 25. Signed The deeds were usually subscribed with the name of him that made the conveyance or passed the estate and if he could not write his name as it befell often then the Deed was under signed with his marke for Withered King of Kent used the signe of the Crosse in subscribing his grants pro ignorantia literarum They used also in those daies to seale their Deeds Sealed Concil Brit. p. 198. for so much the conclusion of King Ina's Charter to the Abby of Glastenbury importeth in words to this effect in English I Inas the King doe confirm this grant and liberty by subscription of my own hand and under the seale of the holy Crosse True it is Ingulfus tels us that seals to Deeds were of Norman originall I believe his intent is concerning seals of Wax anexed or affixed unto deeds Lastly Witnesses in those daies also they used to attest their Deeds by subscribing the names of such as were present who being of greater or meaner ranke rendred the credit of the Deed accordingly more or lesse valuable Acknowledgement and upon this ground did the acknowledging or proving of Deeds before the King Bishop County or Hundred first arise Livery and Seisin Cragius That was the Roman fashion but the more ancient German way of conveyance was by livery and seisin as most suteable to their ignorance who had learning in as sleight account as the Lacedemonians had and cared for no more then would serve the turn of naturall necessity A property they had both in Lands and goods and where that resteth no man can deny them the naturall way of giving and receiving by delivery And therefore though matters of ordinary use seldome come into the observation of story and this petty ceremony might very well passe sub silentio yet we are not altogether left destitute of the footsteps thereof in
law of Henry the first concerning the County court which reciteth it as a custome in his time used Ll. Hen. 1. c. 7. that the Bishop and Earles with other the chiefe men of that County were there present as assistants in directory of judgement And that in order are handled first matters of the Church Secondly Crown pleas Thirdly and lastly Common pleas however therefore the King spake faire they either acted not at all or so cooly as the current of the custome was too strong but most probable it is that the Kings spake faire till they were setled in their Thrones and afterwards pleased themselves for by the generall thred of story it may appeare that the Clergy in those times were more feared then loved and therefore riden with a streight reine The Prelacy on the contrary grew unruly yet too weake for the rugged spirits of the Norman Kings they are glad to be quiet and the Pope himselfe to drive faire and softly as judging it expedient potestatem Regalem mitius tractandam Greg epist l. 9. and continued that course and posture till the calmer times of Henry the first Eadmer hist l. 4 p. 95. wherein they mended their pace and got that without noyse which they had long striven for viz. the preeminence and presidency in the Synods though the King himselfe be present and if the Historian writeth advisedly the whole ordaining or legislative power for so runnes the stile or phrase of the author Archiepiscopi Episcopi statuerunt in praesentia Regis as if the presence of the King and his Barons and people were but as a great Amen at the common prayer after the old stampe to set a good colour upon a doubtfull matter to make it goe down the better How the Kings brooked this draught I cannot say but it hath made the kingdome stagger ever since and it may be feared will hardly recover its perfect wits so long as the brains of the Clergy and the Laity thus lie divided in severall Cels. CHAP. XLVIII Of the severall subservient jurisdictions by Provinces Marches Counties Hundreds Burroughs Lordships and Decennaries HAd the Normans owned no other title then that of Conquest doubtlesse their mother wit must needs have taught them the expediency of preserving the particular subservient jurisdictions of the kingdome intire and unquashed if they regarded either the benefit of their conquest or reward of their parteners and allies unlesse it should be allowed unto Conquerous to be more honourable for them to doe what they will rather then what is meet But hereof there is no cause of queston in this present subject for nothing is more cleare then that VVales enjoyed in the Conquerours time and for ages after him its ancient liberties Tribute excepted nor did conquest ever come so nigh to their borders as to trench upon the liberties of the Marches For as it had been a piece of state nonsence to have holden two peoples under conquest and their Marches in freedome or to preserve them in good neighbourhood by Marches which by the law of Conquest were made one so was it no lesse vaine if all had been once subdued by conquest to have raised up the liberties of the Marches any more And as they had lesse cause to have invaded the bounds and ancient limits and partitions of the Counties County courts so questionlesse had they so done they would have taken the old course of the Micklemote Eadmer hist l. 4. p. 96. as they did divide the Diocesse of Lincolne into two Diocesses by advice of the Bishops Princes and other wise and holy men Ll. Hen. 1. c. 6. and turned the Abby of Ely into a Bishops See But it was their wisdome to preserve the ancient Land-marks and no lesse both wisdome and care to continue their due priviledges and interests to each Every County had its Court Ll. Gulielm cap. 41. 42. and every Court its wonted jurisdiction No complaint must be to the Kings Court if right may be done in the County no distresse must be taken but by warrant from the County and that must be after complaint thrice made The County court must be called as our ancestors have appointed Ll. Gulielm cap. 64. such as will not come as they ought shall be first summoned and in case of default destrained at the fourth default the complainant shall be satisfied out of the distresses so taken and the King also for his fine These are the expresse Laws of the Conquerours own establishment Ibid. c. 64. the last of which also was confirmed by another expresse Law saving that he would allow but of two summons and two distresses before execution And as it was one principall worke that he undertooke to reduce the Lawes into course which had been intermitted during the violent times of his father and brother the first of whom never had liberty for reformation and the latter never had will so amongst other Laws he setled those concerning the County court Ll. Hen. 1. c. 7. namely That the Bishops Earles and chiefe men should be present for direction 2. That it should be holden once each moneth 3. That the Church matters should precede and then the Crown pleas And lastly the Common pleas besides some other particulars concerning pleading and proceedings in the handling of causes Neither were these causes of a petty regard onely but of greatest concernment One example I shall remember the reader of Epicil 197. and not recite in terminis but referre to Mr Seldens own pen. The occasion was this Odo the Conquerours halfe brother was by him made Earle of Kent and therewith had the gift of a large Teritory in Kent and taking advantage of the Kings displeasure at the Archbishop of Canterbury Stigand possessed himselfe by disseisin of divers Lands and Tenements belonging to that See Lanfrank the succeeding Archbishop being informed hereof petitioned to the King that justice might be done him secundum legem terrae And the King sends forth his Writ to summon a County court the debate lasted three daies before the free men of the County of Kent in the presence of many chiefe men Bishops and Lords and others skilfull in the Laws and the judgement passed for the Archbishop Lanfrank upon the votes of the free men This County court was holden by speciall summons and not by adjournment as was allowable by the Saxon Law upon speciall occasions And this suit was originally begun and had its finall determination in the County court and not brought by a Tolt out of the Hundred court as is supposed by an Honourable reporter nor by the ancient laws could the suite commence in the Hundred because the Lands and Tenements did lie in severall hundreds and Counties The upshot of all is that the County courts in those daies were of so great esteem that two of the greatest Peeres of the Realme one a Norman the other an Italian did cast a title
in fifteen mannors two Townships with many liberties upon the votes of the Freeholders in a County court and that the sentence was allowed and commended by the King and submitted to by all In the next place we are to come to the Hundred Courts Hundred court of which there are by the Normans allowed two sorts the first whereof was holden twice a yeere This was formerly called the Torne and was the Sheriffs Court hereof little notice is taken Ll. Hen 1. c 8. saving that by the Laws of Henry the first its worke seems to be much designed to the view of free pledges But the more ordinary Court is that which belongs to the Lord of the Hundred unto whom also belong the fines in cases there concerned This Court is to be holden once in each moneth Ll. Gulielm cap. 41. Ll. Hen. 1 c. 7. Ll. Gulielm cap. 41. Ll. Gulielm cap. 42. and no suit to be begun in the Kings Court that regularly ought to begin in the Hund ed. No distringas shall issue forth till three demands made in the Hundred And three distresses shall then issue forth and if upon the fourth the party appeare not execution shall be by sale of the distresse and the complainant shall receive satisfaction But by the latter Laws of the same King there is but two summons allowed and then two distresses Ll. Hen 1. c. 64. and in case no appearance be execution shall be for the complainant and for the Kings fine Ll. Hen. 1. c. 7. Lastly as the case concerned either persons or places sometimes they used to joyn severall Hundreds together into one Court but this was by speciall Commission or Writ As touching inferiour Courts of Tows and Mannors there 's little observation to be had Courts of Towns and Mannors Ll. Hen. 1. c. 7. being of too private a regard to come into fame in those rough times yet in Henry the firsts Laws its ordered that Town courts should meet every moneth and that Lords should hold Plees either in their own persons or by their Stewards and that the chiefe man in that Parish with foure other of the chiefer sort and the Minister or Parish Priest should joyn their assistance in that worke But in nothing more did the Norman Kings shew their paternall love to the Common-weale Decenners then in the law of pledges or Decenners for as of all other beauties it suffered most blemish from the storme of the Norman invasion so was it their especiall care to renew the life thereof not now amongst the natives onely but joyning the Normans to the Saxons in the same bond of brotherhood utterly drowned thereby all memory of Lordly power and so of divers peoples making one conquered even conquest it selfe if any were and made all joynt-partners in one common liberty Ll. Gulielm cap. 64. Ll. Hen. 1. c. 8. Every free man must be under pledges to satisfie justice in case of delinquency Over every nine persons under pledges there must be one man in authority View of free pledges must be to see that the Decennaries be full and if any be departed to enquire the cause and if any be come in whether he be under pledges or not And thus the Norman Kings had their people under treble guard one of fealty the other of association and the third that of pledges and all little enough to secure that which they in their own consciences might have some cause to question whether it belonged to them or not CHAP. XLIX Of the immunities of the Saxon free men under the Norman government THe freedom of an English man consisteth in three particulars First in ownership of what he hath Secondly in voting any Law wherby that ownership is to be maintained and thirdly in having an influence upon that Judicatory power that must apply that Law Now that the English under the Normans enjoyed all this freedome unto each mans own particular besides what they had in bodies aggregate may appeare as followeth The free men of England were such as either joyned in the warre with Harold against the Normans or such as absented themselves from the way of opposition or enmity and were either waiting upon their own affaires or siding with the Normans and questionlesse all the sadnesse of the warre befell the first sort of the English whose persons and estates to make the waies of the first Norman William regular and of one piece never fell so low as to come under the Law or rather the will of conquest but in their worst condition were in truth within the directory of the Law of forfeiture for Treason against their Soveraigne Lord whose claim was by title as hath been already noted The other sort either did appeare to be the Normans friends or for ought appeared so were and so never offending the Law never suffered any penalty but held their persons and possessions still under the patronage of Law as anciently they and their ancestors had done and that this was the Normans meaning they publish the same to the world in a fundamentall Law whereby is granted Ll. Gulielm cap. 55. That all the freemen of the whole Kingdome shall have and hold their Lands and possessions in hereditary right for ever And by this being secured against forfeiture they are further saved from all wrong by the same law which provideth That they shall hold them well or quietly and in peace free from all unjust Tax and from all Tallage so as nothing shall be exacted nor taken but their free service which by right they are bound to performe This is expounded in the Laws of H. 1. cap. 4. that no tribute or tax shall be taken but what was due in the Confessors time Under the word Tax is understood monetagium commune per civitates or comitatus so as aides and escuage are not included for they are not charged upon Counties and Cities but upon Tenures in Knight-service nor was Dane grelt hereby taken away for that was a Tax in the Confessors time and granted by Parliament So then the Norman Kings claimed no other right in the lands and possessons of any of their subjects then under and by the law or common right and they conclude the law with a sicut which I thus English As it is enacted to them or agreed by them and unto them by us given and granted by the Common-councell of our whole Kingdome Statutum est eis illis à nobis datum concessum per commune concilium totius Regni nostri I leave the words to be criticized upon as the Reader shall please being well assured that the most strained sence can reach no further then to make it sound as an estoppell or conclusion to the King and his successors to make any further claim unto the estates of his subjects then by Law or right is warrantable under which notion conquest never did nor can come as shall more fully be manifested hereafter But
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
which if neglected or refused renders the party guilty of treason against his Countrey and his estate under the penalty of forfeiture according to the old Saxon law revived and declared by Henry the first Ll. Hen. 1. c. 13. Thus the law made preparation for the war both of men and Armes Ll. Gulielm 61. Castles and Forts were likewise either first made by the order of the grand Councell or otherwise allowed by them for the defence of the Commons and the Kingdome so was the law of William the first The levying and mannaging of the warre must not be denied de jure to belong to the representative body so farre as may consist with the directory part for that it is a maine part of the government of the Kingdome in times of warre And therefore Henry the first amongst his laws made in the ordinary course of law making provideth for the ordering of men in the army in the field and established a law that such as forsooke their colours or associats in the field during the battell should be punished with death and forfeiture of is whole estate Nor yet can it be denyed but that de facto Kings of their own accord and by secret Councell did direct therein either in the vacancy of Parliament which was the generall case of the first times of the Norman Conquerour and the whole reigne of Willam Rufus or by connivance of the grand Councell while they saw nothing done but what was well done Ll. Hen. 1. c. 13. Nor can it be rationally said that Kings by such advice as they have in the recesse of the grand Councell levying warre in defence of the publique according to rules doe otherwise then their duty or if the grand Councell looke on see nothing misgoverned and say nothing that they doe other then is meet For it must be remembred that Kings in their first originall were rather Officers for warre then peace and so are holden by all Antiquity and as Generals in warre were called Reges or Imperatores by the Grecians Romans and Germans and at such times as warre was concluded at the generall meeting of the people they chose their Dux or Rex call him which you please and he being chosen all bound themselves to be at his command and to defend his person so as while a King keepeth within his place in time of danger it s his duty first to stirre himselfe and stir up the rest to lead them and order them as may be most for the publique defence and to governe the Army by such Lawes as are or shall be established by order of the publique meeting and in case of sudden exigences to use his own wits and in all this is the common liberty no whit infringed in regard that all is for the publique defence to which the Knights are bound by their tenures and all others by the law And this was this Kingdomes case in the Normans time that both Leaders and souldiers whether by election of the people or prescription yet all served for the defence of the Kingdome Nor were they compelable to any other service inconsistent therewith nor to stand to any judgement in such cases differing from or contrary to that of the Parliament it selfe CHAP. LV. That the entry of the Normans into this Island could not be by conquest THat in point of fact the entry of the Normans into England was not by Conquest will suficiently appeare from what hath been already noted I shall make one step further and shew that as affaires then stood with the Conquerour it was impossible for him to merit that name against the stream of providence that had preingaged him to three sorts of men viz. the Normans the Clergy and the Commons of England It must be taken for a ground that Duke Willam must give all faire correspondency to the Normans considering they are members of his own body and the arme of his strength without which he could doe nothing And it s not lesse certaine that however the Sea divided the two Countries yet long before the arrivall of the Army M. West An. 1072. Ll. Gulielm c. 55. the Normans and Saxons were so well acquainted by the latter accesse of the Danes that partly by marriage and other interests the Normans made so great a party in England as that party merited no lesse from the Duke in his enterance then those he brought with him and therefore both they and their allies in all reason must expect such reward of their faithfulnesse to him as the other had nor could the Duke deny the same unlesse he had disclaimed his own interests whereof he had none to spare Secondly their merit from the Duke was accompanied with no lesse mutuall relation to his Army being of the same blood with themselves and of ancient acquaintance and as impossible for the Duke to keep them from consociation with the mixed people as to abstract the mixed people each from other one or both of which must be done and the Conquerours must be kept from incorporating with the conquered or else the law of conquest cannot hold Thirdly if these two had failed yet had the Duke by his manner of rewarding his Army disabled himselfe from holding however he might seem to have by conquest This was his gift of Mannors Lands and Franchises unto his souldiers compleated with their ancient rights and priviledges in free service otherwise it had been little better then a trap to bring his own men into bondage who but lately were free souldiers under no better then a Duke of their own election and their government in their own Countrey however big yet had not yet brought forth a soveraignty into the world their Duke no compleat King nor themselves so mean as vassalls and it was equally difficult for him to get up higher as for them to stoop lower And however it was dangerous now for the Duke to try masteries unlesse he meaned to hazzard all and to change the substance for the shadow Lastly to lay them all aside and to take the Normans as in themselves considered a people under such laws and customes as were the same with the Saxons and originally in them and from them derived into Normandy by Rollo or some other or take them as a people willing to lay aside their own law as some writers affirme and more willing to take up the Danish customes which were also very nigh a kinne to theirs and in part setled by the Danes in that part of the Kingdome where themselves most resided It must be concluded that a government by law was intended and such a law that was no way crosse to the fundamentall laws of this Kingdome but concurring therewith In every of which regards the future generations may justly claime their immunities as successors and heires unto the Normans albeit no Saxon could have enjoyed or derived the same to posterity A second sort of men that made the King uncapable to hold by
rules for government I remember it s affirmed by some of those ancient Writers that the Duke or King would have brought in the customes of Norwey but the earnest mediation of the English prevailed against it and it evinceth two things to my opinion first that there was question made what law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdome they could not prevaile to bring in the whole body of their law or of the customes of Norwey which were not onely the prima materia of their law but also in kind had a setling at that very time in those places of this Kingdome where the Danes had their principall seate and therefore not altogether strange to the Saxons themselves The summe of which will be this that upon debate a law must be setled and that not the law of the Conquerours own will nor the law that suits with his desire but the ancient law of the Kingdome and therefore if at any time the unquietnesse of some of the English brought the King to some thoughts of arbitrary rule and to shake off the clog of Saxon law it was long ere it stirred and sprang up too late to raise the title of conquest and withered too soon to settle it As touching the change of customes for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour tooke away the custome of Gavell kinde and brought the custome of discent to the eldest sonne and that Kent saved their liberties and continued this custome of Gavell kinde I shall not contend about the liberties of Kent but must till I see better reason hold the opinion of the change of inheritance to be a meere conceit For besides what hath been already said concerning that custome of Gavell kind if we believe Glanvile the difference was between Lands holden by Knights service Lib. 7. cap. 3. and in socage the first of which in his time by ancient custome alwaies descended to the eldest and those Lands that were holden in Socage if not partible by custome in which case they went equally to all the sonnes went by custome in some places to the eldest in other places to the youngest so as the rule of inheritance in the Norman times was custome as well as in former times And furthermore if the custome of Gavell kind had been the generall custome of this Nation the King by his change had contradicted his own Prerogative and granted as great a liberty to his subjects as could have been invented For had the custome of Gavell kind happened upon the Lands in Knight service it had brought all the sonnes under the law of Wardship and had made a ready way to inthrall all men of worth and undoe all husbandry the first whereof had been as advantagious to the Kings private interest as both destructive to the publique Nor is it cleare from any Authour of credit that the Normans changed the tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what tenure he pleased for as well before the Normans time as long after tenures were like as the services were all at the will of the donor and were of as many individuals almost as the minds of the owners some being of more generall regard and publique use Littlet are recorded amongst the grounds of English laws none of which appeare to me to be of Norman originall although they received their names according to that dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute tyrant and to publish laws in a forreigne language that the people through ignorance might the rather transgresse and thereby forfeit their estates This if true so far differed from the nature of a Conquerour as rather proveth that he was put to his shifts Neverthelesse the thing tasteth so much of spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conquerour to entitle himselfe by a cheat where he hath an elder title by conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continuall view of publique affaires in those times who speaking of the Conquerour saith That he commended the Confessors laws to his Justices in the same Language wherein they were wonted formerly to be written Ingulfus lest through ignorance the people might rashly offend And another Authour saith M. Paris fragm Gulielm that the King had a desire to learn the English tongue that he might the better know their Law and judge according thereto It s probable neverthelesse that the laws were in the Norman tongue and it s no lesse likely that the pleadings in reall actions especially were also in the same Language else must the Normans be put to schoole to learne English upon perill of losse of their estates but that either the written laws were wholy concluded into the Norman Tongue or that the publique pleading of causes by word of mouth in all actions where the issue was left to the Countrey were in any other Language then English no advised Reader will conceive seeing it had been a madnesse for an English Jury to passe their verdict in any case wherein its likely many of them understood scarce a syllable of the Norman language much lesse ought of the matter upon which their verdict should be grounded Adde hereunto that it s not likely but the Conquerour inhibited the use of the English language in all matters of publique Record in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon more generally in the Latine but seldome or never in the Norman dialect and that pleadings and indictments were entered in like manner in the Latine Tongue as formerly by an old custome brought in by the Clergy was used for the Clergy who had gotten the Key of knowledge and Law into their own custody layd it up in that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for justice as well as for piety The Normans therefore either found it too hard to alter the former custome in such cases or else thought it the wisest way to choose the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any forreine Tongue besides and yet endeavoured to bring both peoples into one Language as they were intended to be one people and to presse the use of the Norman Tongue in publique affaires so farre as might consist with good government and justice leaving
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
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
may see the great difference between the Prince and the King in one and the same man The most part of those laws were little other then plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergy and therefore delivered the last law in a petitionary way to the Clergy because it concerned the execution of justice in prohibited times and yet bound up all with a salvo to himselfe and his prerogative like a wise King that would neither loose right nor doe wrong nor yet stickle to debate with his subjects now when as his eye was upon a further marke Walsing 46. For Leolin the Prince of VVales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to runne its course that he might have done the sooner Otherwise he had a seed of his fathers conceit that laws are not made for Kings as appeared afterward for after he had gotten his army into the field he tooke a fifteenth which was granted to his father and this was inaudito more M. West An 1276. but there was no disputing with power and therefore the subject must be contented rather to score it up against the future then require present pay so dangerous a thing it is for England that Kings should have occasion to gather armies though for never so honourable imployment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine yeeres travell before they could attaine the shore although it had been often within their view It may be the King found it advantagious for his government to maintaine an Army in the field under the colour of the Welsh warre that he might more bow his subjects to his own bent for during these warres the King made many breathings and tooke time to looke to the husbanding of his own revenue as those Ordinances called Extenta manerii and Officium coronatoris doe witnesse and the Statute of Bigami But the people were not altogether yet tamed for the times being still in warres and they occasioning much waste of treasure put the King to the utmost pitch of good husbandry and one degree beyond the same so as under colour of seising his own he swept up also the priviledges and liberties of his subjects M. West Polyd. virg some authours reciting the complaints of the Church men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another combuston had not the meeting at Glocester setled things for the present by referring the right of franchises to debate in the Eyer and ordering reseisure of such liberties into the subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth chapter of the Statute of Bigami Neverthelesse however debonaire the King seemed to be the sore between him and his subjects was not fully cured nor did the Lords trust him further then needs must for whether they served in the field or met at councell still they were armed and during this daring of each other were many profitable lawes made whiles neither party durst venture bloodshed in touching too nigh upon the priviledges of each other principally because the affaires in Wales were but laid asleepe and upon reviving might turne the ballance to either side The wars awake againe and therein are consumed nigh five yeeres more of the Kings reigne so as what ever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the prerogative of the Crown at home Nor had he scarcely breathed himselfe and army from the Welsh wars but he found both France and Scotland his enemies at once The King faced onely the first and fought the second which held him work the remainder of his daies at the same time also he arred both the Clergy and Laity at his own home as if providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the world whether his justice was spontaneous or by necessity for as yet he held the grand Charter at parley and therefore was rather eyed then much trusted Albeit he was put upon confidence in the subjects discretion for ayd of him in his continuall undertakings nor did they disclaime him herein however chargable it was for all seem willing he should be imployed any where so as not within the foure Seas It s probable the King knew it and therefore having made a voyage into France he changed the Scene of warre but to the other side as it were of a river in hope his Lords would follow but it would not be this angred him and he them nor would his Clergy allow him any ayd papa inconsulto and therefore he outs them from his protection these and his irregular preparations for warre by summons not onely of his Knights but all other that held Land worth 20 li. per annum Walfing 69. and taxes imposed by an arbitrary way increased rancour into a kind of state scoule little better then a quarrell for appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the grand Charter at the long runne and allowed it as the common law of the Kingdome and seconded the same with many succeeding confirmations in the 27 25 Edw. 1. 28 yeeres of his reigne as if he had utterly renounced all thought of a contrary way but the Stat. in his 28th yeere had a sting in the taile that was as ill as his saving of ancient ayd and prisals which was in the Stat. of confirmation of the Charters though it were omitted in this Stat. for the saving was of such a sence as time and occasion would move the Kings heart to make it and thus this Statute became like a Hocus pocus a thing to still the people for the present and serve the Kings turne that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good successe and the terrour of those that had stopped the broad way of his extravigant prerogative and therfore looks bigge rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his warres in Flanders all come and submit and as
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
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
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
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