saith That he will set down frequentius usitata and it is past question but that the tryal by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the Widow of the Tenant whose Dower is not onely provided for but her reasonable part of her Husband 's personal Estate The original hereof was from the Normans and it was as popular as that of Wardships was Regal and so they made the English women as sure to them as they were sure of their Children The Justices shall by Assize try Disseisins done since the King 's coming over Sea next after the peace made between him and his Son. This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that work which formerly belonged to the County-courts and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the Writ is from the King 's last Voyage or going into Normandy Justices shall do right upon the King 's Writ for half a Knights Fee and under unless in cases of difficulty which are to be referred to the King. The Justices itinerant ended the smaller matters in their Circuits the other were reserved to the King in his Bench. Justices shall enquire of Escheats Lands Churches and Women in the King's gift And of Castle-guard who how much and where So as the Judges itinerant had the work of Escheators and made their Circuits serve as well for the King's profit as justice to the Subjects They used also to take Fealty of the people to the King at one certain time of the year and to demand Homage also These matters of the King's Exchequer made the presence of the Judges less acceptable and it may be occasioned some kind of oppression And as touching Castle-guard it was a Tenure in great use in these bloody times and yet it seemeth they used to take Rent instead of the personal service else had that enquiry how much been improper Of a Tenants holding and of several Lords That one man may hold several Lands of several Lords and so owe service to them all is so common as nothing can be more nevertheless it will not be altogether out of the way to touch somewhat upon the nature of this mutual relation between Lord and Tenant in general that the true nature of the diversity may more fully appear The foundation or subject of service was a piece of Land or other Tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the Tenant undertook to peform service to the Lord and the Lord undertook protection of the Tenant in his right to that Tenement The service was first by service solemnly bound either by Oath which the Lord or his Deputy by the Common-Law hath power to administer as in the case of Fealty in which the Tenant bound himself to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the Tenement so given or otherwise by the Tenants humble acknowledgment and promise not only to perform the services due but even to be devoted to the Lords service to honour him and to adventure limb and life and be true and faithful to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to eách For though it be true that by promise of being the Lord's man a general service may seem to be implied yet in regard that it is upon occasion only of that present Tenure it seemeth to me that it is to be restrained only to those particular services which belong to that Tenement and therefore if that Tenement be holden in Socage although the Tenant be bound to homage yet that homage ties not the Tenant to the service of a Knight nor contrarily doth the homage of a Tenant in Knight-service tie him to that of Socage upon the command of his Lord though he professeth himself to be his man. Nor doth the Tenant's homage bind him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for several Tenements and these two Lords be in War one against the other the Tenant must serve his chief Lord of whom the Capital house is holden or that Lord which was his by priority who may be called the chief Lord because having first received homage he received it absolutely from his Tenant with a saving of the Tenant's Faith made to other Lords and to the King who in order to the publick had power to command a Tenant into War against his own Lord. If therefore he be commanded by the King in such cases unto War he need not question the point of forfeiture but if he be commanded by a chief of his other Lords into War against a party in which another of his Lords is engaged his safest way is to enter upon the work because of his Allegiance to that Lord yet with a salvo of his fealty to that other Lord. But in all ordinary cases Tenants and Lords must have regard to their stipulation for otherwise if either break the other is discharged for ever and if the fault be in the Tenant his Tenement escheats to his Lord and if the Lord fail he loses his Tenure and the Tenant might thenceforth disclaim and hold over for ever Nevertheless the Lords had two Priviledges by common custom belonging to their Tenures which although not mentioned in the stipulation were yet more valuable than all the rest the one concerning matter of profit the other of power That of profit consisted in aids and relief The aids were of three kinds one to make the Lords eldest Son Knight the other to marry his eldest Daughter the third to help him to pay a relief to his Lord Paramount which in my opinion sounds as much as if the Tenants were bound by their Tenures to aid their Lord in all cases of extraordinary charge saving that the Lord could not distrain his Tenant for aid to his War and this according to the Lords discretion for Glanvil saith that the Law determined nothing concerning the quantity or value of these aids These were the Norman ways and savoured so much of Lordship that within that age they were regulated But that of reliefs was an ancient sacrifice as of first-fruits of the Tenement to the Lord in memorial of the first Lords favour in conferring that Tenement and it was first setled in the Saxons time The Lords Priviledge of power extended so far as to distrain his Tenants into his own Court to answer to himself in all causes that concerned his
the Church saving to every one their proper debts And thus since the Conquest the Church-men encroached by degrees unto a great power in matters Testamentary I say by degrees for as yet by this Law it appeareth that they were but Overseers or Eye-witnesses for as yet right of ordering or disposing they had none as may appear in that case of a Bastard dying without Issue and intestate the Lord shall have his personal Estate And in all cases the Executor had then nothing but bare Assets and the overplus was assigned between the Wife and Children according to their reasonable part Or if the party died intestate the next friends did administer paying the Debts and making Dividend of the overplus into the reasonable parts according to the ancient Saxon custom still continued Nor doth the testimony cited out of Bracton prove any other than that the Ancestor hath free power to order his Estate as he pleaseth and that the Children shall have no more than is left unto them by their Ancestor either in his Will or in case of dying intestate by the custom or Law which is and ever was the rationabilis pars No purveyance for any Castle out of the same Town where the Castle is but present satisfaction must be made and if in the same Town satisfaction must be made within forty days Purveyance was ancient provision for the necessities of the publick and so far was commendable seeing it is not the common case of all men to regard the publick above their own private interest therefore the publick must provide for it self by their means in whom the publick is most concerned And this 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 publick 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 Towns 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 keep them in awe they were nevertheless by continuance together become tractable and conspired for the mutual 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 principally liable to that duty because their safety is more principally interested and therefore Prizes there taken may be paid at a day to come but in all other places immediately Nevertheless this lasted not long for the Souldiers found out a trick of favouring their own Quarters and preserving them in heart against a back Winter knowing that at such times it is better to seek for provision nigh than to be compelled to seek far off But this Stratagem was cut off by the next King who inhibited all manner of purveyance in any other Town than in the same Town wherein the Castle is seated This was a charge that was but Temporary and occasional That which was more lasting and burthensome upon the Subjects was purveyance for the King which nevertheless cannot be avoided by reason of the greatness of his Retinue especially in those days 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 Houshold 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 and to avoid the many inconveniencies which might and did arise in those spoiling times It was ordained 1. That it should be Felony for any Purveyor to purvey without Warrant 2. That none but the Kings Purveyor must purvey for the Kings house and that he must purvey onely for the Kings house and to purvey no more than is necessary and to pay for the things they take And because Kings were oftentimes necessitated for removal from place to place purveyance of carriage was also allowed And in case the Subjects were grieved either by more purveyance than was necessary or by non-payment for the Commodities so taken or with composition for the Kings debts for such purveyance the Offenders were liable to fine and imprisonment Or if they were grieved by Purveyors 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 nor is be compellable to either so long as be is in the service in the Army By the ancient custom 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 Knight-service and that it was not annual but promiscuously Knights might either perform 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 do the service in his own person or by his Esquire or another appointed by him thereto No Knights nor Lords nor Church-mens Carriages 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. Church-men were exempted from charge to the Kings Carriages meerly in favour to the Canon which exempted the Goods of the Clergy from such lay-Lay-service nevertheless the complaints of the Clergie formerly mentioned shew that this was not duly observed Knights and Lords were discharged not onely for the maintenance of their Port but more principally because they were publick servants for the defence of the Kingdom in time of War and the Kingdom 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 than the year and a day and the Lord is to have the remainder Anciently the Lords had all the Estate of Felons being their Tenants and the King had onely a Prerogative to waste them as a penalty or part thereof but afterwards the Lords by agreement yielded unto the King the year and a days profit to save the Lands from spoil and in continuance of time the King had both the year and day and waste Fugitives also were in the same case viz. such as deserted their Country either in time of need or such as fled from the Tryal of Law in criminal cases for in both cases the Saxons accounted them as common Felons Nevertheless the two customs of Gloucester
waxing weak by the weakness of their Estates now wasted by the Civil Wars therefore in Edward the Second's time a Law was made to restrain the Felony in such cases onely to the breach of Prison by such as were committed for Felony And as touching Imprisonment upon Excommunication it is manifest that within five years before the making of this Law it was complained that such were set at liberty by the King 's Writ de homine replegiando without the Bishop's consent But now the Clergie had gotten the day of the Law which did much decline from that guard of imprisonment but hated perpetual imprisonment Nor was this complaint grounded upon any other Law than that of the Canon for the Common Law ever held the supreme cognizance of Excommunication within its own power as upon the Writ de quare excommunicato may appear Other crimes are yet also by this Law allowed bail such as are persons indicted of Larceny before Sheriffs c. persons imprisoned upon slight grounds Receivers and Accessories before Felony Trespassers persons appealed by provers after the death of the approvers If bail be granted otherwise than the Law alloweth the party that alloweth the same shall be fined imprisoned render damages or forfeit his place as the case shall require And thus the iniquity of the times was so great as it even forced the Subjects to forgo that which was in account a great liberty to stop the course of a growing mischief Publishers of false News whereby discord or slander may arise between the King and his people shall be imprisoned till he produce the Relator It is therefore an offence against the Crown to procure or maintain an ill conceit in the King of the people or an ill conceit in the people of the King and it is as well an offence against the Crown for the King to conceive ill of his people as for them of him But all must be grounded upon falshood for truth respects no man's person and all men are equally bound by the woe if they call good evil or evil good although difference must be made in the manner of representation And upon this ground of maintaining strife was a Law made also against Conspiracy to make or maintain Indictment Suit or Quarrel and it was likewise finable Redisseisors and postdisseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly Redisseisin was under no other Law than that of Desseisin but by this Law made a matter belonging to the Crown and tried before the same Judges that had the power of enquiry of all offences against the Crown The penalty of imprisonment in this case was to be without bail but onely by the King 's Writ de homine replegiando and yet even thus the penalty was not sufficient to restrain the offence and therefore a Law was made to abridge the power of that Writ as touching such offender and they became irremediable as touching their liberty by that Writ besides that upon recovery had against them they lost double damages Trespassers in Parks and Fish-ponds convicted within a year and a day shall render damages suffer imprisonment for three years and give security of good behaviour for time to come If any Beasts be taken in a felonious manner he shall be proceeded against as a Robber From the times of King Steven the Lords and great men endeavoured to advance their power and greatness so high above the meaner sort of Free men as they made Kings continually jealous of their power Castles had been a bone of long contention between them but they being for the most part taken away the strife was about Prisons and power to imprison offenders and that also after much opposition they laid aside Yet the violence of these times being such as though Felonies were somewhat dreaded Trepasses of the highest nature were little regarded such as were riotous hunting in their Parks and fishing in their Waters The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing but this was also denied them though by Henry the Third in his first time when as yet the Government was not worsted by projects of Arbitrary power or corrupt Counsels of Forreigners nor himself a man able to sway with the Lords in matters that were of doubtful prerogative And to speak indifferently it is better for the Liberty of the Subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by Law than by the Warrants of great men especially in their own cases and therefore in this matter the Kings Prerogative was a patron to the Free mens liberty Nevertheless these great men give not thus over their game for though in times of publick calamities little place is left for pleasure to any man yet when times are grown to more quiet pleasure revives and the great men renew their motion and though they could not obtain prisons to their own use as they endeavoured at the meeting at Merton yet now they obtain the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the loss of their pleasure And yet this Law sufficed them not but they obtain a further priviledge that such persons as are found so trespassing and refusing to submit may be killed without peril of Felony CHAP. LXX Of the Militia during these Kings Reigns THe Souldiery of England may be considered First in regard of the Persons Secondly their Arms. Thirdly their Service The persons were as formerly not onely such as were milites or Tenants in Knight-service but also such as served at the Plough and concerning them both it is to be considered what the Law made by Edw. the 2 d. holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood if they shew not cause to the contrary Regularly all Tenants by knight-Knight-service ought to be Knights but de facto were not so as in these times there was a further work to make a man a Knight than his bare Tenure for such onely were milites facti who had both Lands sufficient to maintain the Arms and state of a Knight and also a body fit to undertake the service in his own person and whereof he had given sufficient proof the field Others that had Land either had not sufficient maintenance or not habiliments of person and as not expected were laid aside of this sort were many by reason of the late Civil Wars in which they had much impaired both their bodies and Estates This rendred the strength of the Kingdom and Militia so much decayed and the minds of men so wearied that they began to love ease before the times would brook it and a cessation from Arms before they had any mind to peace The Parliament
espyed the danger and how necessary it was for the people to be well armed in these times of general broil and upon that ground allowed this Law to pass That all such as had Lands worth 20 l. yearly besides Reprizals should be ready not to be Knights nor under the favour of others is there any ancient precedent to warrant it but to find or to enter into the field with the Arms of a Knight or to provide some able person to serve in their stead unless they were under 21 years of age and so not grown up to full strength of body nor their Lands in their own possession but in custody of their Lords or Guardians Nevertheless of such as were grown to full age yet were maimed impotent or of mean estate and Tenants by service of a Knight it was had into a way of moderation and ordered that such should pay a reasonable fine for respit of such service nor further as concerning 〈◊〉 persons were they bound But as touching such that were under present onely and not perpetual disabilities of body upon them incumbent as often as occasion called they served by their deputies or servants all which was grounded not onely upon the Law of Henry the Second but also upon common right of Tenure The Arms that these men were to finde are said to be those belonging to a Knight which were partly for defence and partly for offence Of the first sort were the Shield the Helmet the Hauberk or Breast-plate or Coat of Mail of the second sort were the Sword and Lance and unto all a Horse must be provided These Arms especially the defensive have been formerly under alteration for the Breast-plate could not be worn with the Coat of Mail and therefore must be used as occasion was provided of either and for this cause the service of a Knight is called by several names sometimes from the Horse sometimes from the Lance sometimes from the Helmet and not seldom from the Coat of Mail. The power of immediate command or calling forth the Knights to their service in its own nature was but ministerial and subservient to that power that ordered War to be levied and therefore as in the first Saxon Government under their Princes in Germany so after under their Kings War was never resolved upon but if it were defensive it was by the Council of Lords if offensive by the general Vote of the Grand Council of the Kingdom So by vertue of such Order either from the Council of Lords or Grand Council the Knights were called forth to War and others as the case required summoned to a rendezvouze and this instrumental power regularly rested in the Lords to whom such service was due and the Lords were summoned by the Lord Paramount as chief of the Fee of which their Tenants were holden and not as King or chief Captain in the Field for they were not raised by Proclamation but by Summons 〈◊〉 forth to the Sheriff with distress and this onely against such as were within his own Fee and held of the Crown The King therefore might have many Knights at his command but the Lords more and if those Lords failed in their due correspondency with the King all those of the inferiour Orb were carried away after them so the King is left to shift for himself as well as he can And this might be occasioned not onely from their Tenures by which they stood obliged to the inferiour Lords but probably much more by their popularity which was more prevalent by how much Kings looked upon the Commons at a further distance in those days than in after-times when the Commons interposed intentively in the publick Government And thus the Horse-men of England becoming less constant in adhering to their Soveraign in the Field occasioned Kings to betake themselves to their Foot and to form the strength of their Battels wholly in them and themselves on foot to engage with them One point of liberty these Souldiers by Tenure had which made their service not altogether servile and that was that their service in the Field was neither indefinite nor infinite but circumscribed by place time and end The time of their service for the continuance of it was for a set time if it were at their own charges and although some had a shorter time yet the general sort were restained to forty days For the Courage of those times consisted not in wearying and wasting the Souldier in the Field by delays and long work in wheeling about and retiring but in playing their prizes like two Combatants of resolution to get Victory by Valour or to die If upon extraordinary occasions the War continued longer then the Tenant served upon the pay of the common Purse The end of the service of the Tenant viz. their Lord's defence in the defence of the Kingdom stinted their work within certain bounds of place beyond which they were not to be drawn unless of their own accord And these were the borders of the Dominion of the Crown of England which in those days extended into Scotland on the North and into a great part of France on the South And therefore the Earl-Marshal of England being by Edward the first commanded by vertue of his Tenure to attend in person upon the Standart under his Lieutenant that then was to be sent into Flanders which was no part of the Dominion of England refused and notwithstanding the King's threats to hang him yet he persisted saying He would neither go nor hang. Not onely because the Tenants by Knight-service are bound to the defence of their Lord's persons and not of their Lieutenants but principally because they are to serve for the safety and defence of the Kingdom and therefore ought not to be drawn into foreign Countries Nor did the Earl-Marshal onely this but many others also both Knights and Knights fellows having twenty pounds per Annum for all these with their Arms were summoned to serve under the King's pay in Flanders I say multitudes of them refused to serve and afterwards joyned with the rest of the Commons in a Petition to the King and complained of that Summons as of a common Grievance because that neither they nor their Ancestors were bound to serve the King in that Country and they obtained the King's discharge under his broad Seal accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmain which was made within the compass of these times by which it was provided That in case Lands be aliened contrary to that Statute and the immediate Lords do not seize the same 〈◊〉 King shall seize them and dispose them for the defence of the Kingdom viz. upon such services reserved as shall suit 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 than will consist with the safety of the Kingdom This was the Doctrine that the
Author reciting another example of his justice against another of his Justices for putting one to death without president rendreth the Kings reason for that the King and his Commissioners ought to determine such cases excepting those Lords in whose precinct the Kings Writ passeth not CHAP. XXX Of Francheses of the Person FRancheses of the Person are such Liberties annexed unto the Person as are not absolute Lordships but only tending thereto and limited within a Precinct but not annexed thereto and these are matters of profit rather than power as those of Bury St. Edmonds Doncaster Dorchester Circester all which were in the Saxon times and these or some of them had juridical power in cases of Felonies and Robberies arising within that Precinct so as the Delinquent was both Inhabitant and taken within the same this was called Infangtheoff and if upon fresh pursuit made by the right owner or possessor the Delinquent was taken with the prey in his possession or as the old Dialect is Handhaben Backhearend Then was he carried immediately before the Coroner of that Liberty and the Sakeber or party wronged made his proof by Witnesses and thereupon judgement forthwith passed without answer and execution immediately ensued Some Liberties had Outfangtheoff that is the trial and forfeiture of such Delinquents being no Inhabitants and yet taken within the Liberty or Inhabitants and not taken within the Liberties but this Trial was always by Jury The Antiquity of these Liberties are not obscurely manifested in their names and more clearly by the Saxon Laws and Acts for it 's observed of Alfred that he seized a Franches of Infangtheoff because the Lord of that Franches would not send a Felon taken within his Liberty for a Felony committed without the same to the Goale of the County as he ought to have done Other Liberties there were granted also by Charter a tast whereof may be seen in one Grant made by King Edgar to the Monastery of Glastenbury wherein was granted Sack Hamsockne Friderbrece Forstel Teme Flemone Ferdre Hundred Setene Sock Tholl Adae Horda Bufan Orderan Bene Orderan the 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 Council of Lords granted over to these Grantees in nature of Deputies to the King to possess both the power and profit thereto belonging CHAP. XXXI Of Manors NEvertheless most of these Liberties if not all of them were many times granted by Kings as appendant 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 than the spoils of War 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 politick In Antiquity it is called Mansum from the Mansion-house although it is not of the Essence of a Manor nor ought the words of Bracton to be construed according to the literal sense 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 less and therefore might extend into divers Parishes as on the other part one Town might comprehend divers Manors The Estate that was granted depended partly on the condition of the Grantee for some were servi or Bond-men 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 clear abated the rigour of the tenure into that which we now call Copy-hold Other Estates were made to the Free men which in the first times were only for years albeit therein they were not niggardly for they sticked not at Leases for a hundred years yet with a render of Rent which in those days was of Corn or other Victual and thence the Leases so made were called Feormes or Farmes which word signifieth Victuals But times ensuing turned the Victual into Money and terms of years to terms of lite and inheritance retaining the Rents and those called Quit-rents or the Rents of those persons that are acquitted or free But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a relief 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 Relief or Heriot But over and above all they reserved special 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 These concerned either War or Peace the former was afterwards called the service of the Knight or Souldier the latter 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 and the work was to defend the Kingdom the Lords person and Honour and to this end he was ever to have his weapons in readiness which gave name to the service and altered as times and customs changed This service by custom from a work degenerated into the bare Title and became a dignity and the men named or rather intituled Milites and many of the Saxon Charters were attested by men bearing that Title yet the service itself was far more ancient and called servicium loricae of which sort also were the Custodes pagani that wore a Helmet a coat of Mail and a guilt Sword not unlike the old German way of calling forth of their Tirones to the war. Of this rank some were more eminent than others for some bare the single title of Knight and it seemed served on foot others served on horseback and were called Rad knights or Knights-riders as Bracton noteth and these I take to be the Vavasours noted in the Conquerours Laws for that their relief is a Helmet a Coat of Mail a Shield a Sphear 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 and remains in Sweden at this day
the Canon Robbery is finable The different Law between the Saxons Angles and Danes now by the Normans is setled in the more merciful way and in case the delinquent made flight the pledge satisfied the Law for him But in the latter times of Henry the first the Law was again reduced to the punishment of this crime by death and so hath continued There shall be true weights and measures throughout the Kingdom and those shall be sealed And this was the constant Saxon Law. Perjury to be punished by fine and as formerly still inquirable amongst the Crown-pleas CHAP. LI. The like of Laws that concern common interest of Goods IF Cattle be taken by Distress the party that will replevy them shall pay for the return of the Cattle and give security to bring the Distress into the Court if with within a year and a day it be demanded This Law I take to be intended where the Cattle are taken damage feasant because nothing shall release the Distress in other cases but obedience to the Summons No Distress ad comparendum shall be taken but after three several Summons and so many defaults made and in such case Distress shall issue by especial order from the County-court I noted this partly to shew the difference of the Normans from the Saxons in the delay of execution of Justice by so much mean process and partly to shew the difference between the Norman times and these days wherein mens Cattle lie open to the distress of every oppressing or extorting Bayliff or unknown person and no Summons made at all whereby many poor mens Estates are either undone or they must submit to the unjust demands of their adversary No manner of Goods of above four pence in value shall be bought unless in the presence of four Witnesses of the Town And the vendor shall satisfie out of his own Estate if the sale be not effectual and in case the vendor have no warrant for such Goods by him sold. No living Cattle shall be sold but onely in Cities and before three Witnesses nor shall any thing forbidden be sold without Warranty No Fairs or Markets shall be holden but onely in Cities Boroughs Wall'd-Towns and Castles These Laws concerning sales and Markets were ancient Saxon Laws and tend all to the avoiding of cheating men of their Cattle by surreptitious sale of them made by such as had no right Goods found shall be published by the Finder to the Neighbourhood and if any makes claim and proof of them to be his he shall have them giving security to bring them into the Court in case any other shall within a year and a day make his claim thereto The Children of persons intestete shall equally divide the Heritage This is in terminis the Saxon Law and therefore concerning it I shall refer to the same formerly recited onely I shall add hereto the Law of Henry the first which may serve as an explanation of the former Any Freeman may devise his Chattels by will and if he die intestate his Wife Children Parents or next kin shall divide the same for his Souls good The first branch whereof was ancient and doubtless in continual use but the iniquity of the Norman rude times was such that the Lords under surmise of arrears or relief would seize all the personal estate after the Tenant's death and so the right of last Wills was swallowed up but this restoreth the power of last Wills into it's place anâ— in case the party died intestate preserveth a kind of nature of descent although they be more personal Nor doth that last clause of the Souls good disanul the same although the words may seem to carry away the benefit to some other hand For the whole matter is left to the discretion of such as are next to the Intestate CHAP. LII Of Laws that concern common interest of Lands THe Laws that concern Lands and peculiarly belonging to the Normans are such as concern principally the tenure of Lands which if duly considered although savoured somewhat of the King yet little of the Conquerour For generally it must be granted that Tenures long before and after this time were as the services ordered according to the Will of the giver in which as the King had the greatest share and he the most publick person of all so were his Donations ordered chiefly to advance the publick service and in this regard the Tenure by Knight service might more principally challenge the King's regard than the regard of all the great men besides But this was not the sore yea rather it was the beauty and strength of the Kingdom and for which the King deserved an honourable name above most of his progenitors who had not so much Land to dispose of as he had and therefore could not advance that service in any proportion equal unto him The sore that caused so many sighs was the incumbrances raised upon this most noble and free service which through the evil of times by this means became the most burdensome and the onely loathed and abhorred service of all the rest I say through the evil of times for it cannot lodge in my thoughts but that in the Norman times the incumbrances were nothing so great as of latter Ages and that much hath been imputed to the Laws of the Conquerour which they never deserved as may appear in these particulars which the Laws of Henry the First have preserved in memory Tenant of the King or other Lord dying his Heir shall pay no other relief than what by Law is due That which by Law is due is set down in the Laws of William the Conquerour The Relief of an Earl. 8 Horses sadled and bridled 4 Helmets 4 Coats of Mail. 4. Shields 4 Spears 4 Swords 4 Chasers 1 Palfray bridled and sadled The Relief of a Baron 4 Horses with Saddles and Bridles 2 Helmets 2 Coats of Mail. 2 Shields 2 Spears 2 Swords 2 Chasers 1 Palfray bridled and sadled The Relief of a Vovasor to his Lord. His best Horse His Helmet His Coat of Mail. His Shield His Spear His Sword. Or if he had no Arms then he was to pay s. 100 The Relief of the Country-man is the best Beast that is in his possession and of him that farmeth his Lands a years rent These are the Reliefs due by Law and now setled in Goods or Arms but afterwards turned into Money and it is likely that the ill customs in the former times did extort both Money and Arms or such sums of Money as they pleased and by the very words of the Law it seems they had brought it to an Arbitrary power to take what they could get and yet all against Law. The Kings Tenant shall advise with the King in marriage of his Daughter Sister Niece or Kinswoman and his Widow in like manner The sence hereof in short is that these might
legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia and therefore no man ought to be urged upon such difficulties unless by the express Law of the Land. The old way of Trial was first to bring in a Complaint and Witnesses ready to maintain the same and therefore both Appeals and Actions then used to conclude their pleas with the names of Witnesses subjoyned which at this day is implied in those general words in their conclusions Et inde producit sectam suam that is he brings his sect or suit or such as do follow or affirm his complaint as another part also is implied in those words Et hoc paratus est verificare For if the Plaintiffs sect or suit of Witnesses did not fully prove the matter in fact the Defendant's Averment was made good by his own Oath and the Oaths of Twelve men and so the Trial was concluded No Free-man shall be imprisoned or disseised of his Freehold or Liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peers Nor shall Justice be sold delayed or denied This is a comprehensive Law and made up of many Saxon Laws or rather an enforcement 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 ingress and egress His Estate both real and personal shall also be under the protection of the Law and the Law also shall be free neither denied nor delayed I think it needless 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 sum of all the foregoing discourse tendeth thereto Merchants shall have free and safe passage and trade without unjust Taxes as by ancient custome they ought In time of War such as are of the Enemies Countries shall be secured till it appear 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 Forreiners 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 lawful for every Freeman to pass freely to and from this Kingdom saving Fealty to the King unless in time of War and then also for a short space as may be for the common good excepting Prisoners Outlaws and those Country-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 Kingdom was not anciently fundamental but onely grounded upon reason of State although the Freemen have liberty of free passage within the Kingdom according to that original 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 Jews which because it left an influence behind it after the Jews were extinct in this Nation and which continueth even unto this day I shall insert it in this short sum After death of the Jew's debtor no usury shall be paid during the minority of the Heir though the debt shall come into the King's hand And the debt shall be paid saving to the Wife her Dower and maintenance for the Children according to the quantity of the Debtors Land and saving the Lord's service and in like manner of debts to others The whole doctrine of Vsury fell under the Title of Jews for it seemeth it was their Trade and their proper Trade hitherto It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times but by the Confessor's Law it was made penal to Christians to the forfeiture of Estate and Banishment and therefore the Jews and all their substance were holden to be in nature of the King Villains as touching their Estate 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 appear But Henry the Third did not put it into his Charter as I think because it was no liberty of the Subjects but rather a prejudice thereto and therefore Edward the First wholly took it away by a Statute made in his time and thereby abolished the Jews Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly In all alienations of Lands sufficient shall be left for the Lords distress Submitting to the judgement of the learned I conceive that as well in the Saxon times as until 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 than was formerly due to him without the Lord's consent and for the same reason could they not alien the whole Tenancy to bind the Lord without his express license saving the opinion in the book of Assizes because no Tenant could be enforced upon any Lord lest he might be his Enemy Nevertheless it seemeth that de facto Tenants did usually alien their whole Tenancy and although they could not thereby bar the Lord's right yet because the Lord could not in such cases have the distress of his own Tenant this Law saved so much from alienation as might serve for security of the Lord's distress 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 saving to the Lords their services formerly due and thus the Lords were necessitated to grant Licenses of alienation to such as the Tenants could provide to buy their Lands Nor was this so prejudicial to the Lords in those days when the publick quiet was setled as it would have been in former times of War whenas the Lord's right was maintained more by might and the aid of his Tenants than by Law which then was of little power The 35th Chapter I have formerly mentioned in the Chapter concerning
are to be ordered by Tutors than Children and therefore this may be annexed to the rest of the Liberties as well as the other Nevertheless it seemeth that the Laws took them into their regard in respect of their Estates which might be abused to the prejudice of the Publick rather than out of any respect had to their persons Now because there is a difference between the disability of these persons the one being perpetual the other temporary therefore is there also by these Laws a difference in the disposal of their Estates for the Tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the Tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the natural affection going along with the blood and this so continued in custom until these times for though the Mirrour of Justice saith that Henry the First brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the First speaking of these kind of persons saith Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their Parents and friends But let the time of the entrance of this Law be never so uncertain it is now a declared Law that the King in such cases is the common Curator or Tutor of all such persons as he is a Chief Justice rendring to every one his right The King shall have the Wrecks of the Sea. What shall be called a Wreck the Statute at West 1. declareth viz. Where the Ship so perisheth that nothing therein escapeth alive and these are rather in their original committed to the King as a Curator than given him as a Proprietor although that Custom hath since setled a kind of right which may perhaps be accounted rather a Title by Estoppel For the fundamental ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appear The Heir in Socage-tenure shall have an Action of Waste and an account against his Guardian for the profits of the Lands and Marriage The Heir in Socage being under age shall also be under custody of such Guardian of the next kinred who cannot challenge right of Inheritance in such Lands so holden as if the Lands descended from the Father's side the Mother or next of the kinred of the Mothers side shall have the custody and so if the Lands descend from the Mother the Father or next kinred of the Father's side shall have the custody And this custody bringeth with it an Authority or Power onely and no Right as in case of the Heir in Knight-service and therefore cannot be granted over as the Wardship in Knight-service might but the Guardian in Socage remaineth accomptant to the Heir for all profits both of Land and Marriage The full age of Tenant in Socage is such age wherein he is able to do that service which is Fourteen years for at such age he may be able by common repute to aid in Tillage of the ground which is his proper service But the Son of a Burgess hath no set time of full Age but at such time as he can tell Money and measure Cloath and such work as concerns that calling Widows deforced of their Dower of Quarentine shall by Action recover damages till they recover their Dower They shall also have power to devise their crop arising from her Dower It was used that the Heir should have the crop with the Land but this Statute altered that former usage and yet saved the Lord's liberty to distrain if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilful in the Law. It was none of the meanest Liberties of the Freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no less a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wills and not of the Laws of the Kingdom as the complaints of the Clergy in the times of Henry the Third do witness Nevertheless because many mens cases befel not directly within the Letter of any Law for remedy and yet were very burthensome for want of remedy it is provided by this Law that such emergent cases that do fall within the inconvenience shall be comprehended within the remedy of that Law. Aid to make the Son of the Lord a Knight and to marry his eldest Daughter shall be assessed after the rate of twenty shillings for a Knights Fee and twenty shillings for twenty pounds in yearly value of Socage-tenure The uncertainties of Aids are by this Law reduced and setled as touching the sum and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular sum hereby but also the age of the Son when he was to be made a Knight viz. at the age of Fifteen years too soon for him to perform Knight-service but not too soon for the Lord to get his money And the Daughter likewise was allowed to be fit for Marriage at Seven years of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gain that made the Law and it was not amiss to have the aid beforehand though the marriage succeeded not for many years after and if the Lord died in the interim the Executors having Assets paid it or otherwise his Heir CHAP. LXVIII Of Courts and their Proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of later birth albeit even they also have been of ancient constitutions and divers of them itinerant also and some of them setled in one place The work of the Justices itinerant was universal comprehending both the matters of the Crown and Common-pleas That of Oyer and Terminer is onely of Crown-pleas originally commenced and enquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large work that is to deliver the Gaols of all criminal offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognizance of Common-pleas onely and
sad experience of the latter Government of Kings in these times had taught the Knighthood of England to hold for the future Ages No Tenant in ancient Demesnes or in Burgage shall be distrained for the service of a Knight Clerks and Tenants in Socage of other Mannors than of the King shall be used as they have been formerly Tenants in ancient Demesne and Tenants in Burgage are absolutely acquitted from foreign service the one because they are in nature of the King's Husbandmen and served him and his Family with Victual the other because by their Tenure they were bound to the defence of their Burrough which in account is a Limb or Member of the Kingdom 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 it is 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 Bloud yet could they never obtain their desire for though their persons might challenge exemption from that work yet their Lands were bound to find Arms by their Deputies for otherwise it had been unreasonable that so great a part of the Kingdom as the Clergie then had should sit still and look on whilst 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 always uniform some kind of Wars then were holden sacred and wherein they not onely adventured their Estates but even their own Persons and these not onely in a defensive way but by way of invasion and many times where no need was for them to appear Tenants in Socage also in regard of their service might plead exemption from the Wars for if not the Plough must stand still and the Land thereby become poor and lean Nevertheless a general service or defence of the Kingdom 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 maintain and defend the Kingdom but not compellable to foreign service as the Knights were whose service consisted much in defence of their Lord's person in reference to the defence of the Kingdom and many times policy of War drew the Lords into Arms abroad to keep 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 Foot-men in their Armies but the better and more wealthy sort of them found Arms of a Knight as formerly hath been observed yet always under the pay of the common Purse And if called out of the Kingdom they were meer Voluntiers for they were not called out by distress 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 nevertheless remaining still entire 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 publick oftentimes to raise the people yet the people would give credit as they pleased Or if the King's Title were in question or the Peoples Liberty yet every man took liberty to side with that party that liked him best nor did the King's Proclamation sway much this or that way It is true that precedents of those times cry up the King's power of arraying all Ships and men without respect unless of age or corporal disability but it will appear that no such array was but in time of no less known danger from abroad to the Kingdom than imminent and therefore might be wrought more from the general fear of the Enemy than from the King's command And yet those times were always armed in neighbouring Nations and Kings might have pretended continual cause of arraying Secondly it will no less clearly appear that Kings used no such course but in case of general danger to the whole Kingdom either from foreign Invasion as in the times of King John or from intestine Broils 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 general arrays were not levied by distress till the time of Edward the first and then onely for the rendezvouze at the next Sea-coast and for defence against foreign Invasion in which case all Subjects of the Kingdom are concerned by general service otherwise it can come unto no other account than that Title Prerogative and therein be charactered as a trick above the ordinary strain Fourthly those times brought forth no general array of all persons between the ages of sixteen years and sixty that was made by distress in any case of Civil War but onely by Sheriffs summons and in case of disobedience by summons to appear before the King and his Council which sheweth that by the common Law they were not compellable or punishable Lastly though these arrays of men were sometimes at the charge of the King and sometimes at the Subjects own charge yet that last was out of the road-way of the Subjects liberty as the subsequent times do fully manifest And the like may be said of arrays of Ships which however under command of Kings for publick service were nevertheless rigged and paid out of the publick charge The sum of all will be that in cases of defence from foreign 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 than what they ought CHAP. LXXI Of the Peace WAR and Peace are two births by several venters and may like the day and night succeed but can never inherit each to other and for that cause they may claim to belong to one Father and that one and the same power should act in both and yet it is no good Maxime That he that is the chief Commander in War ought to be the chief in the order of Peace For it naturally befalls that War especially that which we call Civil War like some diseases in the body does rather breed ill humours than consume them and these must be purged by dieting the State and constant course of Justice unto which the rugged Waves of War have little or no affinity if they have not enmity Nevertheless the wisdom of our Ancestors thought it most meet to keep their Kings in work as well in time of Peace as of War and therefore as they anciently referred the principal care thereof to the Lords who together
any Man he must go whither the King shall please to send him which is not onely destructive to the opinion of Thirning concerning the Plea but also though granted is destructive to the Reporter's Judgement in the main point For if an English man may refuse to go without Wages then is he not bound to go by any natural absolute Legiance as the Reporter would have it And as touching the second Case which is Bigot's and Bohun's Case it cleareth the same thing for it was resolved that they ought to go but in manner and form according to the Statutes then is not the ground in the absolute Legiance for that is not qualified but in the positive Statute-law which tieth onely in manner and form and that by voluntary consent in Parliament The rest of the Cases do neither conclude the main point nor the particular thing that the Reporter intendeth For he would imply to the Reader that English men were anciently used to be imprested for the Wars in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Third's time one Anthority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which do speak one word concerning Impresting And that in Edward the Third doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to go beyond the Sea with the Duke of Lancaster and the Plaintiffs Counsel alledged That the Defendant had been beyond Sea with the Duke and was returned To this the Defendant's Counset answered That the Duke was ready to return again and for this cause the Protection was not allowed Yet a Quere is made upon this ground that it might be that the Defendant would not go over with him nor was it proved that he would which sheweth plainly the party was not imprested for then the thing had not been in his power to will or nill The last instance that the Reporter produceth is that of Forinsecum Servitium or Foreign Service and that seemeth to be Knight-service to be performed abroad But this falleth short of the Reporter's intention in three respects First Though it belongeth to the King yet not to him onely but to other chief Lords so saith Bracton Secondly It is not due from every English man. And lastly It is a Service due by vertue of Tenure and then the Conclusion will be That which is due by Tenure of Lands is not due by natural and absolute Legiance and so this Foreign Service arising meerly by compact and agreement between Lord and Tenant and not by the natural duty of an English-born Subject which is the thing that the Reporter drives at in all his discourse will be so far from maintaining the Reporters opinion as it will evidently destroy the same And thus the posture of this Nation in the Field remaineth regular in the rule whatever hath been said against it notwithstanding that in the very instant of Action there may be some irregularity which no doubt both was and ever will be in stormy times Nor did it conquer the Law For though War may seem to be but a sickness of the State yet being in Truth as the Vltimum refugium and onely reserve unto Law beaten to a retreat by opression it is no wonder if this motion or rather commotion that brings on the Law of Peace in the Rear be still and ever subject to rule of Law how unruly soever it self seemeth to be Now because Law imports execution and that presupposes a Trial and it a Court therefore did our Ancestors amongst other Courts not regulated by the Common Law form a Court for the service of War called the Court-Marshal or the Constables Court according as the Office of one or the other had the preheminence The proceedings herein were ordered as I said not accordiag to the Common Law for that is like the Land much distant from all other Nations and the Negotiation of this Island with other Nations as in time of Peace so of War requires a rule common to all those Nations or otherwise no Negotiation can be maintained And for this cause the proceedings in this Court were ever according to the rule of the Civil Law. The work of this Court is principally Judicial and in some cases Ministerial The first reflects upon cause Foreign and Domestick and both of those are either Criminal and such as concern the common Peace of the place of War or more civil relating onely unto private interest As touching the first of these I suppose it is no Bull to speak of a common Peace in the place of War. For a common Peace must be in each party within it self or otherwise no party at private variance can subsist within it self much less make War with the other and therefore in order unto War there must be a Law of Peace for the Trial of Offenders and punishing them for offences committed against the good Government of the War Such as are breaking of Ranks deserting the Standard running away from the Colours Mutinies Murthers Rapes Plundering-private Quarrels disobedience to command and such-like all which do bear the shew of crimes against the common Peace of the Army and the Country Of the second sort are matters concerning Quarter and Contracts in order to the government of the War saving such as are made before either part be inrolled for the War. For if a man doth covenant to serve in the War and keepth not his day at the first Rendezvouz he is to be attached by Writ at the Common Law. Causes Domestical likewise fall under the like division for whatsoever cause may be Forein may also be Domestick because the Army is ever embodied within the Kingdom and must be under the Directory of the Martial law upon the first forming thereof Now though the particular Laws of the Army for the government thereof be ordinarily according to the prudence of the General yet certain Fundamentals have been ab Antiquo made by Custom and the Parliament against which the course of Judicature must not go And as the Parliament saw need it set also particular directions as for the payment of Souldiers Wages for remedy of wastings and plunderings in their own Country and other such emergencies But the execution of all these Laws Originally was in the Marshal of the Army And because that the Army was generally dissolved or such persons engaged in such matters of controversie departed from the Army before the same were concluded therefore the Marshals Court continued in order to the determining of these matters And in continuance of time other matters also crowded into that Society although sometimes under the Directory of the Constable of England as well as at other times under the Marshal more particularly that power of determining matters concerning Torniament a sport that like a Sarcasm tickles the fancy but
marry at their own will without paying Fine or Composition to the Lord and yet must have the liking of the Lord so far as to declare whether the man intended were his Enemy or not and fit to perform Knight-service This Law was therefore grounded upon the present distress of affairs wherein the Nation was unsetled and common right having established a mutual trust between Lord and Tenant found out this means to preserve the same for if the marriages of those that are related to the Tenant in such manner as may inherit part of all his Lands or have joynture therein should be left altogether at the liberty of the Tenant or his Widow it must needs follow that the mutual trust between Lord and Tenant must fail and the publick receive damage And therefore if this custom were of Norman birth it was begotten upon a Saxon Law and might the rather be owned by the English. The Widow of the King's Tenant having Children shall have her Dower and Portion so long as she keeps unmarried The portion here is in the Latine word maritagium which I take to be the Marriage portion given by the Husband according to the Saxon custom whenas the Dower in Land was not in use whereof is spoken formerly in that Chapter of Dower And the Normans were necessitated to introduce this custom of theirs with themselves partly because it was a priviledge which was their own by birth and it could not be waved without an evident wrong done to the Wives of these men who had ventured their lives in that service but principally because it would not consist with the work in hand to disclaim that custom 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 appear hereafter And what could be imagined a more ready way to stay the effusion of bloud and all other unhappy events of enmity than by taking away enmity it self or a more speedy and certain course for union than to reduce the Men and Women of each people to mutual society and to seal up all by a lasting bond of Marriage or greater encouragement for the comfortable proceedings therein than 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 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 Widowhood 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 Widows 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 courtesie and however by the Norman former practice it was much disturbed yet by Henry the first it was again reduced to its former right rather than original arising from his grant as some hold and proved advantageous 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 until the more ancient Saxon law had an honourable burial Nevertheless for the present the Law abridged that right so far as to limit it to the Widow during Widowhood 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 Widows and Wards was not so much an usurpation upon the Common right of the English Subjects as a custom rationally and with great wisdom as the course of affairs 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 years which cost their Ancestors night Two hundred years experience with the Britains besides a world of bloud-shed that might have been spared e're they could find out the right way to a desired peace by mutual marriages had between them Such Widow 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 custom of the Normans and thereby the injustas consuetudines quibus Anglioe regnum opprimebatur viz. Arbitrary Relief taken of the Tenant's Estate arbitrary Marriages made of their Peersons 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 in Law whether man or woman wise or unwise under pretence to train him up in military service fit for the Lord 's own safety and the Kingdoms lifeguard But it was the proper ground of the Lord 's 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 work so as might be most advantageous to the publick which seemed to be chiefly concerned herein And upon the same general ground the survey of fools accompanied the former albeit it was not in practice till Henry the First brought it in as the Mirror of Justice saith fol. 258. 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 custom 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 train them up for the publick service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some such particular persons in Learning for the service of the Publick in time of peace and civil Government Yet thus much appeareth that Guardianship of Lands was a known Custom
Circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdom Neither yet did the first Commission continue so long as four years for within that time Richard Lucy one of the Justices had renounced his Office and betaken himself to a Cloister and yet was neither named in the first Commission nor in the latter nor did the last Commission continue five years for within that time Ralph Glanvil removed from the Northern Circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appear though little to the honour of the justice of the Kingdom or of that Judge however his book commended him to posterity I take it upon the credit of the reporter that this itinerary judicature was setled to hold every Seven years but I find no monument thereof before these days As touching their power certainly it was in point of judicature as large as that of the Court of Lords though not so high It was as large because they had cognizance of all Causes both concerning the Crown and Common-pleas And amongst those of the Crown this onely I shall note that all manner of falshood was inquirable by those Judges which after came to be much invaded by the Clergie I shall say no more of this but that in their original these Iters were little other than visitations of the Country by the grand Council of Lords Nor shall I adde any thing concerning the Vicontiel Courts and other inferiour but what I find in Glanvil that though Robbery belonged to the King's Court yet Thefts belonged to the Sheriff's Court and if the Lords Court intercepts not all batteries and woundings unless in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour Trespasses besides Common-pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certain Laws of Judicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matter of the Crown as of property being desirous to observe the changes of Law with the times and the manner of the growth thereof to that pitch which in these times it hath attained We cannot find in any story that the Saxon Church was infested with any Heresie from their first entrance till this present Generation The first and last Heresie that ever troubled this Island was imbred by Pelagius but that was amongst the Britains and was first battered by the Council or Synod under Germanus but afterwards suppressed by the Zeal of the Saxons who liked nothing of the British breed and for whose sake it suffered more haply than for the foulness of the opinion The Saxon Church leavened from Rome for the space of above five hundred years held on its course without any intermission by cross Doctrine springing up till the time of Henry the second Then entred a Sect whom they called Publicans but were the Albigences as may appear by the decree of Pope Alexander whose opinions I shall not trouble my course with but it seems they were such as crossed their way and Henry the second made the first president of punishing Heresie in the Kingdom under the name of this Sect whom he caused to be brought before a Council of Bishops who endeavoured to convince them of their errour but failing therein they pronounced them Hereticks and delivered them over to the Lay power by which means they were branded in the fore-head whipped and exposed to extremity of the cold according to the decree of the Church died This was the manner and punishment of Hereticks in this Kingdom in those days albeit in seemeth they were then decreed to be burnt in other Countries if that Relation of Cog shall be true which Picardus noteth upon the 13th Chapter of the History of William of Newberry out of which I have inserted this Relation Another Case we meet with in Henry the second 's time concerning Apostacy which was a Crime that as it seems died as soon as it was born for besides that one we find no second thereto in all the file of English story The particular was that a Clerk had renounced his Baptism and turned Jew and for this was convicted by a Council of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortal and the manner of conviction of both by a Council of the Clergie and delivered over to the Lay-power who certainly proceeded according to the direction of the Canon or advice of the Council These if no more were sufficient to demonstrate the growing power of the Clergie however brave the King was against all his Enemies in the field Treason was anciently used onely as a Crime of breach of Trust or Fealty as hath been already noted now it grows into a sadder temper and is made all one with that of laesa Majestas and that Majesty that now-a-days is wrapped up wholly in the person of the King was in Henry the second 's time imparted to the King and Kingdom as in the first times it was more related to the Kingdom And therefore Glanvil in his book of Laws speaking of the Wound of Majesty exemplifies Sedition and destruction of the Kingdom to be in equal degree a Wound of Majesty with the destruction of the person of the King and then he nameth Sedition in the Army and fraudulent conversion of Treasure-trove which properly belongs to the King. All which he saith are punished with Death and forfeiture of Estate and corruption of Bloud for so I take the meaning of the words in relation to what ensueth Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with loss of Member and Estate This was the Law derived from the Normans and accordingly was the direction in the Charge given to the Justices itinerant in Henry the second 's time as appeareth in Hoveden But Treason or Treachery against the Oath Fealty or Bond of Allegiance as of the Servants against the Lord was punished with certain and with painful deaths And therefore though the murther of the King was Treason yet the murther of his Son was no other than as of another man unless it arose from those of his own Servants The penalty of loss of Estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the Moveables was to the Sheriff of the County unto whose cognizance the case did belong and the Land went to the Lord immediately and not to the King. But in all cases of Felony and of a higher nature the party though not the King's Tenant lost his personal Estate to the King for ever his Free-holds also for a year and a day after which they returned to the Lord of the Soil by way of Escheat
gather Armies though for never so honourable employment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine years travel before they could attain the shore although it had been often within their view It may be the King found it advantageous for his Government to maintain an Army in the field under the colour of the Welsh War that he might more bow his Subjects to his own bent for during these Wars the King made many breathings and took time to look to the husbanding of his own Revenue as those Ordinances called Extenta manerii and Officium Coronatoris do witness and the Statute of Bigami But the people were not altogether yet tamed for the times being still in Wars 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 seizing his own he swept up also the Priviledges and Liberties of his Subjects some Authors 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 Combustion had not the meeting at Gloucester setled things for the present by referring the right of Franchises to debate in the Eyer and ordering reseizure 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 Nevertheless however debonair the King seemed to be the sore between him and his Subjects was not fully cured nor did the Lords trust him further than needs must for whether they served in the Field or met at Council still they were armed and during this daring of each other were many profitable Laws made whilst neither party durst venture bloodshed in touching too nigh upon the Priviledges of each other principally because the affairs in Wales were but laid asleep and upon reviving might turn the ballance to either side The Wars awake again and therein are consumed nigh five years more of the King's Reign so as whatever 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 himself 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 days and at the same time also he arrayed 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 than much trusted Albeit he was put upon confidence in the Subjects discretion for aid of him in his continual undertakings nor did they disclaim him herein however chargeable it was for all seem willing he should be employed any where so as not within the four Seas It is probable the King knew it and therefore having made a Voyage into France he changed the Scene of War 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 aid Papa inconsulto and therefore he outs them from his protection These and his irregular preparations by War by summons not onely of his Knights but all other that held Land worth 20 l. per annum and Taxes imposed by an arbitrary way increased Rancor into a kind of State-scoul little better than a Quarrel 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 run and allowed it as the common Law of the Kingdom and seconded the same with many succeeding confirmations in the twenty seven and twenty eighth years of his Reign as if he had utterly renounced all thought of a contrary way But the Statute in his 28th year had a sting in the tail that was as ill as his saving of ancient aids and prisals which was in the Statute of confirmation of the Charters though it were omitted in this Statute for the saving was of such a sence as time and occasion would move the King's 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 King's turn 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 success and the terrour of those that had stopped the broad way of his extravagant Prerogative and therefore looks big rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his Wars in Flanders All come and submit and as it were in so many words let the King know that all England is now tame and like to be ridden at his discretion And now there 's nothing in his way but the fatal execration which he feared not in relation to God's anger but rather to the exasperated Clergie and the dread of the Pope's direful Thunder-bolt To avoid this storm he procures a Dispensation from Rome to perjure and oppress without sin a trick that he learned of his Father and hid it within his breast till now about two years before his end he brings it forth to tell all the world that hitherto he had been just against his will. But having obtained his purpose he nevertheless misseth of his end for a new King of Scots our old good enemies by divine providence suddenly crossed his way before him and now it boots not to contend for arbitrary rule in England and lose the Crown of Scotland which he once thought he had sure he faces about therefore and having spoken fair to his people for Scotland he goes Thus if all were not in a Parenthesis the King intended a good period but God onely knows what his furthest reach would have been if he had returned for he was taken out of this world in Scotland and so left this his government somewhat like an imperfect sentence His Son Edward should have compleated it but that he wanted his Father's sence and had too much of his Grandfather's superbient humour that meeting
to the degree of Laws if the Parliament liked them Nevertheless National Synods in England undertook the quarrel of general Councils for Arch-bishop Peckham in a Synod 1280. enjoyned the Constitutions made in the Council at Lyons to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong And before him Boniface made Constitutions in opposition to the customs of the Kingdom so as the matter was now come to a kind of contest whether Synods or Parliaments should hold supremacy in doubtful cases concerning the limits of the Ecclesiastical and Temporal power For henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now think themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inhibendo quod sicut Baronias quas de Rege tenent diligunt nullo modo praesumant concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt quod si fecerint Rex inde se capiat ad Baronias suas And this prevailed so effectually that the Bishops durst not adventure too far lest they should go beyond their guard and therefore they come and ask leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of Bastardy wherein they would have had their consent That Children born before Marriage might be made legitimate by the Marriage subsequent And yet they could not prevail for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon-law and the Laws of the Normans sided with them And so they obtained not their desire although they still retained the Tryal of general Bastardy unto themselves Nevertheless the times were such as Kings being too weakly assisted by the people and the Clergie strongly seconded by the Pope they took advantage of those times of distraction so as to hold themselves no farther obliged to the King than the Pope and their own covetousness would allow them and to make all sure they had setled it so far as they were able by a Constitution that the Clergie were not bound to aid the King Papa inconsulto and they put it in practice in a Synod under Arch-bishop Winchelsie Anno 1295. in the time of Edward the First and although the King prevailed in the conclusion at that time yet from the times of Henry the Third the Clergie for future times granted their aids to the King by themselves and apart from the rest of the body of the Kingdom and held themselves not bound by any aid granted by the Parliament albeit that their own aids granted in their Synods were not obligatory unto the body of the Clergie in this Kingdom unless first allowed and confirmed by the Parliament And thus is England become like a two-bodied monster supported with one pair of Legs CHAP. LXVII Of the condition of the Free-men of England of the Grand Charter and other Statutes during the Reigns of these Kings SHattered asunder by broyls of Civil Wars the Freemen having laid aside that regard of the ancient mutual covenant and bond of Decenners are now become weak and almost enthralled to the lust of Kings Lords Pope and English Clergie and therefore it is 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 several 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 cool scent yet they still retained the prey within their view Sometimes they were cast far 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 upon the publick Theatre The Historian saith it was the same with that of King John's framing and yet by comparing them together we find 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 pass along The First Chapter concerned the Church of which sufficient hath been spoken The Freemen shall enjoy these Liberties to them and their Heirs for ever The Heir in Knight-service shall pay the ancient relief That Reliefs 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 paid in Horses Arms c. But in after-times all was turned into money which was more beneficial for all Lords shall have their Wards bodies and Lands after homage received until the full age though the Ward be formerly Knighted The Law of Wardship may seem more anciently seated in this Kingdom than the Normans times for if the Statutes of Scotland bear 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 distress that it could not be in the power of the Lord to distrain till he was possessed of the service And if by fraudulent conveyance the Heir did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appear the Lord might seize the Lands unless in case of Wardship per cause de guard And in case the Lord would hold the Wardship longer than the full age of the Heir an Assize did lie against the Lord for the Heir could not enter without Livery But if the Heir were of full age at the time of the Ancestor's death the Lord could not enter the Lands and yet he should have a Relief and the primer seisin And if the Heir entred the Lands before Homage done he gained no Free hold though he were Knighted before as this Law provideth For it may seem that these times of Civil War brought forth a trick 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 War was good or evil And yet reason might induce a conceit that he that was thought meet to do 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 Assigns or Committees of Wardships shall preserve the Land c. from Waste and the Tenants from extortion They shall yield up the same stocked
if they receive them stocked The first of these is the Law of common reason for it is 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 doubtless they were within the intent and meaning of the Law. The matter declares plainly not onely the oppression of Lords upon their Wards but also the corruption even of the Law itself that at the first aimed at the good of the Publick and honour of Knight-service but now was degenerated into the base desire of profit by making market of the Wards Estates and Marriages that brought in strip and waste 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 spoil of times Nor did these times ever espy or provide against the worst of these but onely endeavoured to save the estate by punishing the wasters in damages by this Law and by forfeiture of the Wardship by a Law made in the time of Edward the First 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 First 's time 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 Charta or at least not so reputed It was therefore afterwards provided that these also should render damages in a Writ of Waste to be brought against them The marriage of Wards shall be without disparagement It was an ancient Law among the Germans and the Saxons brought it hither and as a Law setled it that Marriage must be amongst equals but this the Danes and Normans slighted and yet it continued and was revived Now as the Lord had the tuition of the Ward instead of the Ancestor so had he the care of the marriage in such manner as the Ancestor might have had if he had lived For in case the Ward were stoln and married the Delinquent suffered fine and imprisonment Or if the Ward married without the Lord's consent he shall have the double value and hold the Land over till satisfaction But in case the Lord marrieth the Ward within fourteen years of age to its disparagement he shall lose his Wardship thereby And if the Ward refuseth to accept of a marriage tendred by the Lord before her age of sixteen years the Lord shall hold the Lands till he have received the full value and in case where one Tenant holdeth of divers Lords the Lords by priority shall have the marriage These Laws were in use during the Reigns of those Kings although it cannot be certainly concluded hereby that the Wives portion properly belonged to the Lord as for his own benefit partly because the Female-Wards should have no advancement if it belonged to the Lords and partly because this forfeiture was given to the Lords in nature of a penalty as appeareth by the frame of the Statute of Merton Widows shall have their Dower inheritance their inheritance which they have joyntly with their Husbands their marriage freely and their Quarentine With due regard of the opinion of others I shall propound my own It seemeth to me that the King is within this Law as well as within the former Laws of the Normans and those of Henry the Second that are of this kind and as he is within the compass of every Law of this Charter and that it is called the Grand Charter as most immediately coming from the King to the people and not from the Lords Nor is there any ground that the Law should intend to give liberty to Widows of Wards belonging to inferiour Lords to marry whom they will and that onely the Kings Widows shall be bound Nor did this suit with the contest between the Barons and the King that their Widows should be bound unto the King and the Widows of their Tenants discharged from their tuition and therefore I conceive by the word maritagium is not meant liberty of Marriage but her Marriage-portion or rationabilis pars according to the foregoing Laws of Henry the First and Henry the Second and the Saxon Customs But as touching the liberty of Marriage it is defined and expressed that the Widows shall not be compelled to marry nevertheless if they shall marry they must marry with the Lord's liking otherwise he might have an enemy to be his Tenant that might instead of homage and service prove Traitor and be his ruine Lastly touching the Widows dwelling the Law thought it unreasonable that she should immediately after the death of her Husband be exposed to be harbourless and therefore ordained that she might continue in her Husband's house Forty days if it were not a Castle and then she was to have another dwelling assigned to her because by common intendment she is not supposed to be a person meet to defend a Castle and this was called her Quarentine which I meet not with amongst the Saxon Laws and therefore suppose it to be of Norman original No Man's Land shall be seized for Debt to the King so long as the Personal Estate will satisfie Nor shall his pledge be troubled so long as the Principal is sufficient unless he refuse to satisfie and then the pledge shall recover in value The first part hereof was the issue of the Law concerning elegit formerly observed in the Saxon times for the regard of Law principally extended unto the person next unto the Free-hold and lastly unto the goods The latter part of this Law was the Law of Pledges or Decenners in the same times unto which the Reader may resort for further light herein The City of London and other Cities Burroughs and Towns and the Cinque-ports and other Ports shall enjoy their ancient Liberties The whole Kingdom and the Members thereof herein expressed had all their Liberties saved from the dint of Conquest by the Law of William the first upon which although some of the succeeding Kings did invade yet none of them made any absolute disseisin although disturbance in some particulars But King John did not only confirm them by his grand Charters but by particular Charters to each Corporation with some enlargements and in his grand Charter inserted one clause which in the grand Charter of Henry the Third appeareth not which thus ensueth Et ad habendum commune concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis which if the barbarism of the Latine mislead me not is thus in English And to have right of Common-Council or to be of the Common-Council of the Kingdom for the assessing of aids other than in three cases aforesaid viz. for
Arms yet having regard to the ancient course of the Saxons saving that they urged the use of the Bow more than formerly was used and thereby taught the conquered to conquer the Conquerours in future ages Of these sorts of Assessments before this Stature at Winton I find but two the first made by Henry the second and the other by Henry the third which together with that of this Statute I parallel thus together in their own words Hen. 2. Hen. 3. Stat. Wint.  Lands Goods  Knights Fee. 15 Librat 60 Marks 15 l. Land 40 Marks Goods Loricam Loricam Loricam Hauberk Cassidem Capellum ferri Capellum ferri Shapel de fer Clipeum Gladium Gladium Espee Lanceam Cultellum Cultellum Cotel  Equum Equum Chival 16 Marks Chattels 16 Marks Rents 10 Librat 40 Marks 10 l. Lands 20 Marks Goods Halbergellum Halbergettum Halbertum Hauberk Capelletum ferri Capellum ferri Capellum ferreum Shapel de fer Lanceam Gladium Gladium Espee  Cultellum Cultellum Cotel 10 Marks Chattels 10 Marks Rents 100 s. 20 Marks 100 s. Land. Wanbais Perpunctum Perpunctum Purpoint Capelletum ferri Capellum ferreum Capellum ferreum Shapel de fer Lanceam Gladium Gladium Espee  Lanceam Cultellum Cotel  Cultellum    Betwixt 5 l. and 40 s. 9 Marks Betwixt 5 l. 40 s.  Gladium Gladium Espee  Cultellum Arcum sagit Arke setes  Arcum sagit Cultellum Cotels  Under 40 s. Under 9 Marks to 40 s. Under 40 s.  Falces Falces Faulx  Gisarmas Gisarmas c. Gisarmes  Cultellos c.  Cotels    Under 20 Marks Goods    Espees    Cotels I have thus impaled these three that the Reader may the better discern how they relate each to other and so may the better understand the matter in the sum And I must explain three or four words in them as they are set down before I can bring up the conclusion because the mistake of the sence of the words hath made some mistake the intent of the thing and forced the same to an unwarrantable issue Lorica signifies that piece of Armour that defends the breast or forepart of the body and sometimes is made of plates of Iron of which sort I conceive those of the old Germans were whereof the Historian maketh mention paucis loricae he saith the Germans had few Arms of defence of their foreparts and fewer Helmets or Head-pieces for otherwise if they had Iron defences for their heads they would not have been content with defences made of Leather for their fore-parts as in the first rude times they might have been Sometimes it is made of links of Iron and commonly is called a Coat of Mail but I conceive it cannot be so meant in the assessments of Henry the Second and Henry the Third because that those of the second degree are said that they ought to keep Haubergettum or Halburgellum or Haubertum all which are but several dialects of one name and are taken for a Coat of Mail and therefore by the diversity of names in one and the same assessment I do conclude that the Armour was not of one and the same fashion But it is evident that by Hauberk in the assessment of the Statute at Wint. is meant a Coat of Mail and is never taken for a Brest-plate or Gorget as hath been taken upon trust by some that build more weighty conclusions upon that weak principle than it is able to bear and for the truth hereof as the word is a French word so I appeal to all French Authors and shall not trouble the Reader with the notation of the word or further about the meaning thereof In the last place as great mistake is that also of the word Shapell de fer which is taken by some to betoken a Breast-plate of Iron For the truth whereof the Reader may consider the Latine word Capellum or Capelletum and he shall find that it is an Iron cap or an ordinary Head-piece and in the Assize of Henry the Third it holds the place of Cassis in the Assize of Henry the Second For the manner of all these let the Reader view the Sculptures of the several Norman Kings armed for the Charge in the beginning of their several Reigns as they are represented in Speed's History It may also be conceived that there is as much mistake of that Weapon which is called Cultellum or Cotel whilst they translate it by the word Knife for though it be true that it is one signification of that word yet it appears not onely by this Law that it was a Weapon for a Knight in War but in use at Tornaments as by that Statute that forbids the use of a pointed Sword or pointed Cotel a Battoon or a Mace at that sport and therefore it may seem to be some Weapon of greater use either a Cotellax or such-like Weapon otherwise to enjoyn the finding of a Knife to a man as an offensive Weapon against armed men in Battle would serve to no use at all Now concerning the difference between the several Assizes aforesaid it consisteth either in the number of the several degrees or ranks of those that are assessed Or secondly in the manner of their valuation Or lastly in the particulars of their Arms assessed upon them As touching the degrees in Henry the Second's 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 appear But Henry the Third taking example of King John who was the first founder of general arrays charged all but such as were men of nothing albeit I find not that such as were of the inferiour degree were sworn to those Arms but rather allowed to have them And though the Statute at Winchester holdeth to the same degrees in Lands yet in the value of Goods there is some difference in favour of them that onely have stock and no Free-hold Secondly there is some difference in the manner of valuation of Lands with Chattels and therein the Statute at Winton favours the personal estates more than Hen. 3. and he more than Hen. 2. and yet all of them pretend one rule of ancient custom I believe they mean that they had it in their eye but not in their heart For they would come as night to it as they could and yet keep as far from it as they durst Thirdly as touching the difference of the Arms between these three assessments it seems so small as in this they are most of them all one For wherein Hen. 2. leads both Hen. 3. and Edw. 1. do imitate saving that they add the Horse and Sword which questionless was to be understood as a granted case that the compleat Arms of a man could not be carried and managed without a
Horse nor defended without a Sword. As touching other alterations it might be done upon good advice as not being deemed méet 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 custom of maintaining Arms by every Free man for the defence of the Kingdom first made uncertain 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 yielded himself 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 original 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 lump 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 nor intended to be supply for War when Edward the First calls for it because Edward the First shall not have his power confined within the compass of a Statute but to be at liberty of array as he should think meet and it is not to be denied but the words of this Law run thus viz. That the intent thereof is for preserving of the peace but those general words will not bear the power of a restrictive sence for certainly the peace is as well preserved by providing against War as against Riots and against Forrein War as Intestine Mutinies And that the Statute intended the one as well as the other will appear because it was made in relation to former precedents of Henry the Third and they speak plainly that their intent was to strengthen the Kingdom against dangers from abroad The words of the Historian are clear that Henry the Third charged all that had 15 libratas terrae and upwards should undertake the Arms of a Knight ut Anglia sicut Italia militia roboraretur And because he had threats from beyond Sea by the defection of the Gascoigns therefore he caused Writs to issue forth throughout the Kingdom that secundum pristinam consuetudinem assessment of Arms should be secundum facultates and in one of the Writs published by the Historian the express assessment of H. 3. formerly mentioned is particularly set down Nor are these Arms thus assessed so slight as men would pretend for the Arms of the first Rank were the compleat Arms of a Knight and their Estates equal thereunto for those 15 libratae terrae amounted to 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 Coat of Mail unto eight Hides of Land which according to Gervase of Tilburie's account cometh to 800 Acres every Hide containing one hundred Acres These therefore were better than Hoblers And the succeeding Ranks found Arms also proportionable to their Estates as considerable as the times could find 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 wisdom of the Parliament might be questioned if they intended no better provision against an Enemy than against a Thief 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-laws lightly armed to fly away when they 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 Knight-hood of the Kingdom with as much discretion will be sufficient provision against the other But if these be looked upon in the later sence I fear the discretion of the Parliament would have been much more questioned in arming all men that have any ability to suppress Thieves and Rogues against which the ordinary Watch and Ward of the Kingdom was an ancient and approved remedy and sufficient safe-guard And I would fain know of these men whether it be for the safety of Edward the First or any other King to arm the whole body of the people especially in times of jealousie for suppressing of Thieves and Robbers whenas it may be done by a guard of known men in every County with much more ease and less charge to the people Lastly whereas it is endeavoured to make this Statute but a temporary provision and taken up for the present condition of affairs 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 Custom the ground of that custom 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 Custom or provide for future generations Nevertheless if all be granted viz. that this Statute is but a present Order that the Arms therein are too slight to resist an Enemy and the end thereof was onely to enable the Kingdom against Thieves and Robbers yet could not Edward the first pretend to have any power to assess Arms at pleasure upon occasion of War for the defence of the Kingdom nor is there any precedent 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 Free-men and their Lands Nor did King John disclaim the same but pursued it and yet if there be any precedent 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 himself summons to defend himself themselves and the Kingdom of England all men that ought to have Arms or may have Arms and such as have no Arms 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 years before his death held himself to the assessment to Arms onely of such as had Lands and at this time of exigency others unarmed were summoned