estate if the sale be not effectuall and in case the vendor have no warrant for such goods by him sold No living Cattell shall be sold but onely in Cities Ll. Gulielm cap. 60. and before three witnesses nor shall any thing forbidden be sold without warranty No faires or markets shall be holden but onely in Cities Ibid. c. 61. Burroughs walled Towns and Castles These Lawes concerning sales and markets were ancient Saxon lawes and tend all to the avoyding of cheating men of their Cattell by surreptitious sale of them made by such as had no right Goods found shall be published by the finder to the neighbourhood Ll. Gulielm cap. 7. and if any makes claime and proofe of them to be his he shall have them giving security to bring them into the Court in case any other shall within a yeere and a day make his claim thereto The children of persons intestate shall equally divide the heritage Ll. Gulielm cap. 36. This is in terminis the Saxon law and therefore concerning it I shall referre to the same formerly recited onely I shall adde hereto the law of Henry the first Ll. Hen. I which may serve as an explanation of the former Any free man may devise his chattels by will and if he die intestate his wife children parents or next kinne shall divide the same for his soules good The first branch whereof was ancient and doubtlesse in continuall use but the iniquity of the Norman rude times was such that the Lords under surmise of arreares or reliefe would seise all the personall estate after the tenants death and so the right of last wils was swallowed up but this restoreth the power of last wils into its place and in case the party died intestate preserveth a kind of nature of descent although they be more personall Nor doth that last clause of the soules good disannull 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 concerne common interest of Lands THe Laws that concerne Lands and peculiarly belonging to the Normans are such as concerne 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 publique person of all so were his donations ordered chiefly to advance the publique service and in this regard the tenure by Knight service might more principally challenge the Kings regard then the regard of all the great men besides But this was not the soare yea rather it was the beauty and strength of the Kingdome and for which the King deserved an honorable 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 equall unto him The sore that caused so many sighes was the incumbrances raised upon this most Noble and free service which through the evill of times by this meanes became the most burthensome and the onely loathed and abhorred service of all the rest I say through the evill of times for it cannot lodge in my thoughts but in the Norman times the incumbrances were nothing so great as of latter ages and that much hath been imputed to the Lawes of the Conquerour which they never deserved as may appeare in these particulars which the Laws of Henry the first have preserved in memory Tenant of the King or other Lord dying 1 Reliefe M. Paris An. 1100 1213 his heire shall pay no other reliefe then what by Law is due That which by Law is due is set down in the laws of William the Conquerour The Reliefe of an Earle Ll. Gulielm cap. 12. 8. Horses sadled and bridled 4. Helmets 4. Cotes of Maile 4. Shields 4. Speares 4. Swords 4. Chasers bridled and sadled 1. Palfray bridled and sadled The Reliefe of a Baron Ibid. c. 23. 4. Horses with Saddles Bridles 2. Helmets 2. Cotes of Maile 2. Sheilds 2. Speares 2. Swords 2. Chasers bridled and sadled 1. Palfray bridled and sadled The Reliefe of a Vavasor to his Lord Ibid. c. 24. His best Horse His Helmet His Cote of Maile His Shield His Speare His Sword Or if he had no Armes then he was to pay s. 100 The reliefe of the Countrey man is the best beast that is in his possession Ll. Gulielm cap. 29. and of him that farmeth his Lands a yeeres rent These are the Reliefes due by law and now setled in goods or armes but afterwards turned into money and its likely that the ill customes in the former times did extort both money and armes or such summes of money as they pleased and by the very words of the law it seemes they had brought it to an arbitrary power to take what they could get and yet all against Law 2. Marriage The Kings tenant shall advise with the King in marriage of his daughter sister neece or kinswoman and his widdow in like manner The sence hereof in short is that these might marry at their own will without paying fine or composition to the Lord and yet must have the liking of the Lord so farre as to declare whether the man intended were his enemy or not and fit to performe Knight service This law was therefore grounded upon the present distresse of affaires wherein the nation was unsetled and common right having established a mutuall trust between Lord and Tenant found out this meanes to preserve the same for if the marriages of those that are related to the Tenant in such manner as may inherit part or 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 mutuall trust between Lord and Tenant must faile and the publique receive dammage And therefore if this custome were of Norman birth it was begotten bpon a Saxon law and might the rather be owned by the English 3. Dower The widdow of the Kings 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 custome when as 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 custome 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 worke in hand to disclaime that custome which must needs be of infinite consequence in the effecting of what was principally sought after viz. the union of the two peoples Normans and Saxons into one I say it was principally sought after by the Norman conquerour if not led thereto by his own genius yet necessitated thereto by force of reason of state as shall appeare hereafter And what could be imagined a more ready way to stay the effusion of blood and all other unhappy events of enmity then by taking away enmity it selfe or a more speedy and certaine course for union then to reduce the men and women of each people to mutuall society and to seale up all by a lasting bond of marriage or greater encouragement for the comfortable proceedings therein then the setling of the constant maintenance of the wife in case of survivorship by the law of dower of the Lands and Tenements of the Husband Lindenbrog Concil Aenham c. 19. Ll. Edm. which was so full of contingencies and uncertainties in the portion of goods that was by the Saxon law appointed to the wife in such case Nor was this all for by marriage thus made to the Normans they had a great hold not so much over the English as in the English and that not onely during coverture but by reason of this title of Dower the women became tenants and under the Lords wing so as they durst not willingly and illegally offend their Lord in their widdowhood nor by law nor reason match themselves and their dowry to any other that was not first allowed by the Lord to be in friendship with him and thus became the tenants widdows to be at the liking of the Lord for their marriage and the like hereto may be said concerning the husband in case of tenant by the curtesie Miror fo 20. and however by the Norman former practise it was much disturbed yet by Henry the first it was again reduced to its former right rather then originall arising from his grant as some hold and proved advantagious for the ends aforesaid Now as touching their marriage portion of goods because the Saxon law had already endowed them thereof they could not be induced to lay down their known ancient right till they found the new law of dower to settle and so for some time both laws were in force untill the more ancient Saxon law had an honourable buriall Neverthelesse for the present the law abridged that right so farre as to limit it to the widdow during widdowhood according to the former Saxon law Upon consideration of all which it may well be conceived that the power of the Lords in consenting or dissenting to the marriages of their tenants widdows and wards was not so much an usurpation upon the common right of the English subjects as a custome rationally and with great wisdome as the course of affaires then stood upholden and allowed amongst them principally for the speedy setling of a peaceable government and consolidating of two Nations into one and wherein England was then so happy as to come to a conclusion in seven yeeres which cost their ancestors nigh two hundred yeeres experience with the Britons besides a world of bloodshed that might have been spared ere they could finde out the right way to a desired peace by mutuall marriages had between them cap. 4. 4. Wardship Such widdow shall have the custody of the Lands of such children or otherwise such other person as by right ought to have the same This is the first news of Wardships that passed abroad cum privilegio of a received Law which together with the former declare the right custome of the Normans M. Paris and thereby the injustas consuetudines quibus Angliae regnum opprimebatur viz. Arbitrary reliefe taken of the Tenants estate arbitrary marriages made of their persons and arbitrary grants of guardianship of their lands for as yet oppression was not so high flown as to cast the government of the persons of their Wards out of the view of the Lords provisionary care upon adventure of the next inlaw whether man or woman wise or unwife under pretence to train him up in military service fit for the Lords own safety and the Kingdomes lifeguard but it was the proper ground of the Lords own seisure and right of wardship he being looked upon by the eye of common reason as the onely meet man that both could and would effect that worke so as might be most advantagious to the publique which seemed to be chiefly concerned herein and upon the same generall ground the survey of fooles accompanied the former albeit it was not in practise till Henry the first brought it in as the Mirror of justice saith fo 258. Ll. Canut 37. yet it came upon an ancient foundation laid in the time of the Danes For my own part I will not dispute the point whether this custome of Wardship was purely Norman or whether it was derived from the Saxons anciently who possibly might have some respect to Orphans in such cases to traine them up for the publique service in point of war especially being possessors of a known right of reliefe as well as Alfred the Saxon King did undertake the worke for the training of some such particular persons in learning for the service of the publique Asser Menev. in time of peace and civill government yet thus much appeareth that guardianship of Lands was a known custome enough to make and maintaine a right and that it by law was a right belonging to some persons before others and that this had been a custome before the former unjust customs crept into government of the Conquerour and principally of his sonne Rufus and though it be questionable whether it setled first upon the Normans or the English yet its manifest that if one people had it the other people now comming into union with that people could not in reason except against that custome which the other people had taken up upon so honorable grounds as reason of State which as the times then were was evident and superlative especially the customes being under the regulating of Law and not of any arbitrary power and can be no presidents of the reliefe marriage and wardship that after ages usurped Tenants in Knights service shall hold their Lands cap. 5. c. acquitted of all taxes 5. Acquittall that they may be more able to provide Armes and be more ready and fit for the Kings service and defence of the Kingdome This law whither it be a renewing of a former custome or an introduction of a new Law it s cleare it was upon an old ground That Tenants by Knight service must be ready for the service of their Lord and defence of the kingdome whereof afterwards But the law is that these men shall hold their lands of that tenure acquitted of all taxes though legally imposed upon the body of the Kingdome which must be conceived to be for the publique benefit viz. either for the preparation or maintenance of publique warre for in such cases it hath been in all times held unreasonable that those whose persons are imployed to serve in the warres should hold lands doubly charged to the same service viz.
to the defraying of their own private expences in the warre and maintenance of the publique charge of the same war besides CHAP. LIII Of divers Lawes made concerning the execution of justice ALthough in proceedings in cases of vindicative justice delinquents might seem to be left rather to the fury then mercy of the law yet so long as men are under the law and not without the law it hath been alwaies held a part of justice to extend what moderation might possibly stand with the honour of the law and that otherwise an over rigid and fierce prosecution of the guilty is no lesse tyranny then the persecution of the not guilty and although violence was the proper vice of these times yet this point of honour must be given to the Normans that their Sword had eyes and moved not altogether by rage but by reason No sentence shall passe but upon averment of the complaint by accuser or witnesses produced Ll. Hen. 1. c. 5. Fine and pledges shall be according to the quantity of the offence Ll. Hen. 1. M. Paris By these two laws of Henry the first the subjects were delivered from three great oppressions first in making them offenders without complaint or witnesse Secondly in imposing immoderate fines Lastly in urging extraordinary baile Forfeiture of fellons Lands is reduced to a yeere and a day Miror fo 261 The Normans had reduced the Saxon law in this case unto their own last which stretched their desire as farre as the estate would beare but this being so prejudiciall to the immediate Lords who were no offenders in this case and so contrary to the Saxon law it was both done and undone in a short space by the allowance of Henry the first Intent of criminall offences manifested by act punished by fine or mulct This by Alfreds law was punished by Talioes law Miror fo 254. but now by a law of Henry the first reduced to mulcts Mainperners are not to be punished as principals unlesse they be parties or privies to the failing of the principall This law of Henry the first repealed the former law of Canutus which must be acknowledged to be rigorous Miror fo 141. although not altogether without reason No person shall be imprisoned for committing of mortall crime unlesse first he be attainted by verdict of twelve men Ll. Hen. 1. c. 5. By imprisonment is intended close imprisonment or imprisonment without baile or mainprise for otherwise its apparent that as well by the Saxon as Norman laws men were brought to triall by restraint Appeales of murder restrained within the fourth degree Before this law Appeales were brought by any of the blood or kinne of the party slaine Miror cap. 2. Sec. 7. but now by Henry the first restrained The ground seems to be for that affection that runnes with the blood grows so cold beyond the fourth degree that the death of the party is of so small account as can it scarcely be reputed a losse of such consequence to the party as to expose the life or price of the life of the manslayer unto the claime of such an one and thus the Saxon law that gave the satisfaction in such case to the whole kindred became limited to the fourth degree as I conceive from the Ecclesiastical constitution concerning marriage Two things more concerning juridicall proceedings may be noted the one concerning speedy course of justice wherein they may seem to justifie the Saxon way but could never attaine to their pace in regard they yeelded so much time to Summons Essoines c. The other concernes election of Judges by the parties for this we finde in the lawes of Henry the first CHAP. LIV. Of the Militia during the Normans time THe power of Militia is either the legislative or executory power the legislative power without contradiction rested in the grand Councell of the Kingdome to whom it belonged to establish laws for the government of the kingdome in time of peace And this will appeare in the preparation for warre the levying of warre and mannaging thereof after its levied for the preparation it consisteth in leavying men and munition or of money In all which questionlesse will be a difference between raising of warre by a King to revenge a personall injury done to the Kings own person and a warre raised by the whole Kingdome or representative body thereof which is commonly done in defence of publique interest and seldome in any offensive way unlesse in recovery of a right of possession either formerly lost or as yet not fully setled Now although it be true that seldome do injuries reflect upon the Kings person alone but that the Kingdom will be concerned therein to endeavour a remedy yet because it may fall out otherwise Kings having been occasioned to leavy war of their own accord but in such case could neither compell the persons of his subjects or their estates to be contributory And of this nature I take the warre leavied by Harold against the Conquerour to be wherein the greatest part of the Kingdome was never ingaged nor therefore did it feele the dint of the Conquerours Sword at all and in this case the Militia must be allowed to such as beare the purse nor can it be concluded to be the Militia of the Kingdome nor any part thereof although it may connive thereat But to set this consideration aside as not coincident at all with the Norman ingagements after they were crowned and to take all the subsequent warres to be meerly defensive of the right of the Crown as in sober construction they will appeare to be as touching the levying of money its evident that it lay onely in the power of the grand Councell of the Kingdome for otherwise the laws were setled that no Tax should be made or taken but such as were due in the Confessors time as formerly hath been shewed Secondly for the preparing of men and munition it was done either by tenure or by speciall law as touching tenure it was provided by way of contract that those that held by Knights service should be ready with their Armes to assist the King for the defence of the Realme So as they were not bound by their tenure to ayd him in any other cases Ll. Gulielm cap. 57. Others were also by especiall law of the Land bound to be ready for their service in that kind For all the inhabitants of this Kingdome held their estates under a generall service which by common right they are bound to performe viz. in time of danger to joyn in defence of their Countrey This is the common fealty or allegiance which all men owe Ll. Gulielm c. 59. and
rules for government I remember it s affirmed by some of those ancient Writers that the Duke or King would have brought in the customes of Norwey but the earnest mediation of the English prevailed against it and it evinceth two things to my opinion first that there was question made what law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdome they could not prevaile to bring in the whole body of their law or of the customes of Norwey which were not onely the prima materia of their law but also in kind had a setling at that very time in those places of this Kingdome where the Danes had their principall seate and therefore not altogether strange to the Saxons themselves The summe of which will be this that upon debate a law must be setled and that not the law of the Conquerours own will nor the law that suits with his desire but the ancient law of the Kingdome and therefore if at any time the unquietnesse of some of the English brought the King to some thoughts of arbitrary rule and to shake off the clog of Saxon law it was long ere it stirred and sprang up too late to raise the title of conquest and withered too soon to settle it As touching the change of customes for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour tooke away the custome of Gavell kinde and brought the custome of discent to the eldest sonne and that Kent saved their liberties and continued this custome of Gavell kinde I shall not contend about the liberties of Kent but must till I see better reason hold the opinion of the change of inheritance to be a meere conceit For besides what hath been already said concerning that custome of Gavell kind if we believe Glanvile the difference was between Lands holden by Knights service Lib. 7. cap. 3. and in socage the first of which in his time by ancient custome alwaies descended to the eldest and those Lands that were holden in Socage if not partible by custome in which case they went equally to all the sonnes went by custome in some places to the eldest in other places to the youngest so as the rule of inheritance in the Norman times was custome as well as in former times And furthermore if the custome of Gavell kind had been the generall custome of this Nation the King by his change had contradicted his own Prerogative and granted as great a liberty to his subjects as could have been invented For had the custome of Gavell kind happened upon the Lands in Knight service it had brought all the sonnes under the law of Wardship and had made a ready way to inthrall all men of worth and undoe all husbandry the first whereof had been as advantagious to the Kings private interest as both destructive to the publique Nor is it cleare from any Authour of credit that the Normans changed the tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what tenure he pleased for as well before the Normans time as long after tenures were like as the services were all at the will of the donor and were of as many individuals almost as the minds of the owners some being of more generall regard and publique use Littlet are recorded amongst the grounds of English laws none of which appeare to me to be of Norman originall although they received their names according to that dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute tyrant and to publish laws in a forreigne language that the people through ignorance might the rather transgresse and thereby forfeit their estates This if true so far differed from the nature of a Conquerour as rather proveth that he was put to his shifts Neverthelesse the thing tasteth so much of spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conquerour to entitle himselfe by a cheat where he hath an elder title by conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continuall view of publique affaires in those times who speaking of the Conquerour saith That he commended the Confessors laws to his Justices in the same Language wherein they were wonted formerly to be written Ingulfus lest through ignorance the people might rashly offend And another Authour saith M. Paris fragm Gulielm that the King had a desire to learn the English tongue that he might the better know their Law and judge according thereto It s probable neverthelesse that the laws were in the Norman tongue and it s no lesse likely that the pleadings in reall actions especially were also in the same Language else must the Normans be put to schoole to learne English upon perill of losse of their estates but that either the written laws were wholy concluded into the Norman Tongue or that the publique pleading of causes by word of mouth in all actions where the issue was left to the Countrey were in any other Language then English no advised Reader will conceive seeing it had been a madnesse for an English Jury to passe their verdict in any case wherein its likely many of them understood scarce a syllable of the Norman language much lesse ought of the matter upon which their verdict should be grounded Adde hereunto that it s not likely but the Conquerour inhibited the use of the English language in all matters of publique Record in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon more generally in the Latine but seldome or never in the Norman dialect and that pleadings and indictments were entered in like manner in the Latine Tongue as formerly by an old custome brought in by the Clergy was used for the Clergy who had gotten the Key of knowledge and Law into their own custody layd it up in that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for justice as well as for piety The Normans therefore either found it too hard to alter the former custome in such cases or else thought it the wisest way to choose the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any forreine Tongue besides and yet endeavoured to bring both peoples into one Language as they were intended to be one people and to presse the use of the Norman Tongue in publique affaires so farre as might consist with good government and justice leaving
further worke to make a man a Knight then his bare tenure for such onely were milites facti who had both Lands sufficient to maintaine the Armes and state of a Knight and also a body fit to undertake the service in his own person and whereof he had given sufficient proofe in 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 civill warres in which they had much impaired both their bodies and estates This rendred the strength of the Kingdome and Militia so much decayed and the minds of men so weared that they began to love ease before the times would brooke it and a cessation from Arme before they had any mind to peace The Parliament espied the danger how necessary it was for the people to be well armed in these times of generall broile and upon that ground allowed this law to passe that all such as had Lands worth 20 li. yeerly besides reprisals should be ready not to be Knights nor under the favour of others is there any ancient president to warrant it but to finde or to enter the field with the Armes of a Knight or provide some able person to serve in their stead unlesse they were under 21 yeeres 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 Neverthelesse of such as were grown to full age yet were maimed impotent or of meane 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 their persons were they bound But as touthing such that were under present onely and not perpetuall 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 armes 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 Brestplate or coate of maile Of the second sort were the Sword and Lance And unto all a horse must be provided These Armes especially the defensive haue been formerly under alteration for the Brestplate could not be worne with the coate of maile and therefore must be used as occasion was provided of either and for this cause the service of a Knight is called by severall names sometimes from the horse sometimes from the Lance sometimes from the Helmet and not seldome from the coat of maile The power of immediate command or calling forth the Knights to their service in its own nature was but ministeriall and subservient to that power that ordered warre to be leavied and therefore as in the first-Saxon government under their Princes in Germany so after under their Kings Tacitur warre was never resolved upon but if it were defensive it was by the counsell of Lords if offensive by the generall vote of the grand Councell of the Kingdome so by vertue of such order either from the Councell of Lords or grand Councell the Knights were called forth to warre and others as the case required summoned to a rendezvouz and this instumentall power regularly rested in the Lords to whom such service was due and the Lords were summoned by the Lord Paramont as chiefe of the fee of which their tenants were holden and not as King or chiefe Captaine in the field for they were not raised by Proclamation but by summons issued forth to the Sheriffe with distresse 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 orbe were carried away after them so the King is left to shift for himselfe 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 daies then in after times when the Commons interposed intentively in the publique government And thus the Horsemen of England becomming lesse constant in adhearing to their Soveraigne in the field occasioned Kings to betake themselves to their foot and to forme 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 generall sort were restrained to forty daies For the courage of those times consisted not in wearying and wasting the Souldier in the field by delayes and long worke in wheeling about and retiring but in playing their prizes like two combitants of resolution to get victory by valour or to die If upon extraordinary occasions the warre continued longer then the tenant served upon the pay of the common purse The end of the service of the Tenant viz. their Lords defence in the defence of the Kingdom stinted their work within certain bounds of place beyond which they were not to be drawn unlesse of their own accord and these were the borders of the Dominion of the Crown of England which in those daies extended into Scotland on the North and into a great part of France on the South And therefore the Earle Marshall of England being by Edw. 1. 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 Kings threats to hang him yet he persisted saying he would neither goe nor hang. Not onely because the tenants by Knight service are bound to the defence of their Lords 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 forraine Countries Nor did the Earle marshall onely this Walsing fo 69. 71. but many others also both Knights and Knights fellows having twenty pounds per annum for all these with their armes were summoned to serve under the Kings 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
particular natures of each may be observed in the Glossaries All of them being allowed to the Crown by the Law and by the advice of the Councell of Lords granted over to these Grantees in nature of Deputies to the King to possesse both the power and profit thereto belonging CHAP. XXXI Of Manors NEverthelesse most of these liberties if not all of them were many times granted by Kings as appendent to Manors which were Francheses of smaller circuit being at the first portions of ground granted to some particular persons and by them subdivided and granted over to particular persons to hold of the Grantors by rents services and suit to one Court all being no other then the spoiles of warre and rewards of valour or other service These in their collective nature are called a Manor and by continuance of time become a kind of body politique In antiquity it s called Mansum from the mansion house although it is not of the Essence of a Manor Bracton fo 212 nor ought the words of Bracton to be construed according to the literall sence for the house may be destroyed and yet the Manor continue and the ground was granted in tenure before any house built thereupon The quantity of the ground thus given to hold by service was according to the pleasure of the Lord more or lesse and therefore might extend into divers Parishes as on the other part one Town might comprehend divers Manors Flera lib. 4. cap. 15. The Estate that was granted depended partly on the condition of the Grantee for some were servi or bondmen and their Estate was altogether at the will of the Lord as was also the benefit but the servants merit and the Lords benignity concurring with some conscience of Religion as the light grew more cleare abated the rigour of the tenure into that which we now call Copyhold Other Estates were made to the Free men which in the first times were onely for yeers albeit therein they were not niggardly for they sticked not at Leases for a hundred yeeres Ingulsus Croyl yet with a render of rent which in those daies was of Corn or other Victuall and thence the Leases so made were called Feormes or Farmes which word signifieth Victuals But times ensuing turned the victuall into money and terms of yeers to terms of life and inheritance retaining the rents and those called Quit rents or the rents of those persons that are acquitted or free Gloss 158. Ll. Saxon 16 17. Lamb. Gloss 348. Ll. Canut p. 1. cap. 69. But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a reliefe which were not left to the will of the Lord but was put in certainty in the very letter of the Law for according to each mans degree such was his reliefe or heriot But over and above all they reserved speciall service to be done by the person of the Tenant or some other by his procurement of which those that were their servi or villains were at the will of the Lord others had their particular service set down in their grants Knight-service These concerned either warre or peace the former was afterwards called the service of the Knight or Souldier the later the service of the Husbandman or Plough That of the Souldier was the more honourable and suitable to the old German trade Pigrum iners videtur sudore acquirere quod possis sanguine parare Tacitus and the worke was to defend the Kingdom the Lords person and honour and to this end he was ever to have his weapons in readinesse which gave name to the service and altered as times and customes changed This service by custome from a worke degenerated into the bare Title and became a dignity and the men named or rather entituled Milites and many of the Saxon charters were attested by men bearing that Title yet the service it selfe was farre more ancient and called servicium loricae of which sort also were the Custodes pagani that wore a Helmet a coat of Maile and a guilt Sword not unlike the old German way of calling forth of their Tirones to the war Tacitus Of this ranke some were more eminent then others for some bare the single title of Knight and it seemed served on foot Others served on horseback and were called Radknights or Knights riders as Bracton noteth Selden Spicil and these I take to be the Vavasours noted in the Conquerours Laws for that their reliefe is a Helmet a Cote of Maile a Shield a Speare and a horse Now for the maintaining of this service they had Lands and Tenements called Knights Fees which bound the owner to that service into whose hands soever they came to be done either by the person of the owner or other fit person by him procured and therefore were discharged from the payment of all taxes and tollage which was the Law of the Goths of old Co. Litlet 75. Bureus and remains in Sweden at this day The number of these Fees much increased so as in the Conquerours time they were above sixty thousand which was a mighty body for a small Island and brought much honour to the Nation But the profit arose from beneath Soccage tenure I mean from the soccage tenure or service of the Plough which in the first times was performed by those that were unfit for the service of the wars either being green and young or decrepet and aged Tacitus and sometimes by the women But after that the Saxon conquest was at a stop and that no more was to be gotten by blood men endeavoured to satisfie their desires by sweat and turned their Swords into Ploughshares and thus the Husbandry increased exceedingly and hath proved the best pillar of the Common-weale the nature of this tenure is fully set out by the Reporter Co. Litlet fo 86. Ll. Edw. c. 33. Spiceleg Ll. Edw. c. 33. nor can I adde thereto more then the Law of the Confessor concerning these men viz. that no man might trouble them but for their rent nor any Lord thrust them out of their Farme so long as they do their service and thus it appeareth that the service became in nature of a condition subsequent begetting an increaser of the Estate which by continuance wrought an inheritance and so the Title of Entry was turned wholly into distresses for service not performed yet the Lord was no looser thereby so long as Heriots Rents and Services accrewed unto him CHAP. XXXII Of Courts incident and united unto Manors BY grants made by Lords unto Tenants already noted the Lords had power by common right to call their Tenants before them and enquire concerning their payment of rents and performance of services which became Courts of constant appointment of which sort there were two one for the free men the other for the bond men and this brought forth an other service Court-leet
the higher nature the party though not the Kings tenant lost his personal estate to the King for ever his free holds also for a yeere and a day after which they returned to the Lord of the soile by way of escheat It seemeth also that the losse not onely of chattels and goods but also of lands c. extended to Outlaries I conceive in case of Felony and the Kings pardon in such case could not bind the Lords right of escheate although it might discharge the goods and the yeere and the day whereunto the King was entituled which case alone sufficiently declareth what power Kings had in the estates of their subjects Manslaughter 5. Manslaughter made not bailable This was law in Henry the seconds time although it crossed the Norman Law Glanvil l. 14. cap. 1 3. and questionlesse it was upon good ground for the times now were not as those in the Conquerours times when shedding of blood was accounted valour and in most cases in order to the publique service And now it seems it was a growing evill and that cried so loud as though in case of Treason baile might be allowed yet not in this case ubi ad terrorem aliter statutum est saith the authour Robbers 6. Robbery shall be committed to the Sheriffe or in his absence to the next Castelane who shall deliver him to the Sheriffe And the Justices shall doe right to them and unto trespassers upon Land Ll. Gul. 4. Spicil 174. By the Conquerours law these offenders were bailable and I conceive this was no repeale thereof and the rather because Glanvile alloweth of pledges in all cases except Manslaughter yea in those crimes that did wound Majesty it selfe Glanvil lib. 14. cap. 1. although they concerne the destruction of the Kings person or sedition in the Kingdome or Army thereof The Justices herein mentioned were intended to be the Justices itinerant and the trespasses upon Land are meant such as are contra pacem Domini Regis as riotous and forcible entries for some trespasses were against the peace of the Sheriffe as formerly hath been observed Fauxonry 7. Fauxonry Glanvil lib. 14 cap. 7. is of severall degrees or kinds some against the King others against other men and of those against the King some are punished as wounds of Majesty as falsifying the Kings charter and whether falsifying of money were in that condition or not I leave or falsifying of measures yet more inferiour I cannot determine but its cleare by Glanvile that falsifying of the deed of a private person was of smaller consideration and at the utmost deserved but losse of member Inheritances may not be aliened 8. Glanvil lib. 7. cap. 1. Ibid. c. 5. Inheritances were in those times of lands or goods for it was the custome then that the personall estate the debts deducted was divisible into three parts one whereof belonged in right to the wife as her reasonable part the other to the heire and third to the testator to make his will of them and of the other two parts he could not dispose by will Concerning Lands it was regularly true that no man could alien his whole inheritance to the disherisin of his heire either by act in his life time or any part thereof by his last will without the concurrance of the heire But of purchased lands he may give part by act executed in his life time though he have no Lands by inheritance and if he hath no issue then he may alien all And where a man hath Lands by inheritance and also by purchase he may alien all his purchased lands as he pleaseth If the lands be holden in Gavel kinde no more of the inheritance can be conveyed to any of the children then their proportionable parts will amount unto This law of inheritance was divers according to the tenure for the lands in knight-Knight-service alwaies discended to the heire but such as were holden in soccage passed according to the custome either to the eldest or to the youngest or to all equally And thus stood the generall state of inheritance from the Normans times hitherto Ll. Hen 1. c. 88. seeming somewhat too strait for the free men that by law of property might challenge a power to doe with their own as they pleased But the Normans saw a double prejudice herein the first was the danger of ruine of many of their families who now ingrafted into the English stocke and yet not fully one might expect a late checke to their preferments from the Saxon parents after a long and faire semblance made of their good will The second prejudice was the decay of their Militia which was maintained by riches more then by multitude of men partly because that rich men are most fearfull of offending and therefore ordinarily are most serviceable both with their bodies and estates against publique dangers and partly because by their friends and allies they bring more ayd unto the publique by ingaging them in the common cause that otherwise might prove unsensible of the condition of their Country The heire of a free man shall by descent be in such seism as 9. his ancester had at the time of his death Vide Glanv l. 7. c 9. doing service and paying releif and shall have his chattailes If the heire be under age the Lord shall have the Wardship for the due time and the wife her Dower and part of the goods If the Lord withhold seisin the Kings Justice shall trie the matter by twelve men The first of these branches is declaratory of a ground of common law but being applied to the last is an introduction of a new law of triall of the heires right by Assize of Mortdancester where formerly no remedy was left to the heire but a Writ of right If these three branches be particularly observed they speake of three sorts of heires of tenants by Knight-service viz. such as are majors or of full age and such as are minors or under age and such as are of a doubtfull age Those that are of full age at the death of their ancestors may possesse the lands descended and the Lord may not disseise him thereof but may be resisted by the heire in the maintenance of his possession so as he be ready to pay reliefe and doe service that is due and if the Lord expell him he shall have remedy by Assize Those heires that are minors shall be under the Lords guardianship till they come to one and twenty yeeres Tbe heires of such as hold by soccage are said to be at full age at fifteene yeeres because at that age they were thought able to doe that service but the sonnes of Burgesses are then said to be of full age when they have ability to mannage their fathers calling such as telling of money measuring of cloath and the like yet doth not Glanvile or any other say that these were their full age to all purposes albeit that some Burroughs at
Charter and other Statutes during the reignes of these Kings SHattered asunder by broiles of Civill wars the free men having laid aside that regard of the ancient mutuall covenant and bond of Decenners are now become weake and almost inthralled to the lust of Kings Lords Pope and English Clergy and therefore it s no wonder if taxes and tributes were many and new although most of them deserved not to march under any banner but the colours of oppression nor did any thing save them from the worst tenure of all but the severall interests of those superiour powers which oftentimes did justle with one another and thereby gave the Commons liberty to take breath so as though for the present they lost ground and hunted upon a coole sent yet they still retained the prey within their view Sometimes they were cast farre behind other times they recovered themselves a truce is cried and laws are made to moderate all and determine the bounds of every one and thus comes the grand Charter into the Publique Theater The Historian saith it was the same with that of King Johns framing and yet by comparing them together we finde them disagreeing both in words and sence and therefore shall sum the same up as shortly as I can observing the difference of the two Charters as I passe along The first Chapter concerned the Church of which sufficient hath been spoken Mag. carta The Free men shall enjoy these liberties to them and their heires for ever cap. 2. The heire in Knightservice shall pay the ancient reliefe cap. 3. That reliefes were setled by the Saxons hath been already shewed and also that they were continued and confirmed by Henry the first onely in those times they were payed in Horses Armes c. but in after times all was turned into money which was more beneficiall for all cap. 4. Vide Stat. de Wardis 28 E. 1 Lords shall have their Wards bodies and Lands after homage received untill the full age though the Ward be formerly Knighted Glanvil lib 6. cap. 1. 4. The Law of Wardship may seem more anciently seated in this Kingdome then the Normans times for if the Statutes of Scotland beare any credit that Law was in Scotland before those times The Lords were not to have the Wardship before they were possessed of the tenure because it was theirs as a fruit of the tenure according to the Saxon law concerning distresse that it could not be in the power of the Lord to distraine till he was possessed of the service Stat. Marlbr cap. 6 7. And if by fraudulent conveyance the heire did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appeare the Lord might seise the Lands unlesse in case of Wardship per cause de guard Stat. Marlbr cap. 16. prerog Reg. cap. 3. And in case the Lord would hold the Wardship longer then the full age of the heire an Assize did lie against the Lord for the heire could not enter without livery But if the heire were of full age at the time of the ancestors death the Lord could not enter the Lands and yet he should have a reliefe and the primer seisin And if the heire entered the Lands before homage done he gained no free hold Prerog Reg. cap. 13. though he were Knighted before as this Law provideth for it may seem that these times of civill warre brought forth a tricke of Knighting betimes as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of warre was good or evill and yet reason might induce a conceit that he that was thought meet to doe Knight service in his own person might expect the maintenance fit for the ability of the person and honour of the service Grantees or their assignes or Committees of Wardships shall preserve the Land c. from waste cap. 5. and the tenants from extortion They shall yeeld up the same stocked if they receive them stocked cap. 6. The first of these is the law of common reason for its contrary to guardianship to destroy that which by their office they ought to preserve As touching the words of the Law the Grantees are omitted in the Charter of King John and also their assignees albeit that doubtlesse they were within the intent and meaning of the Law The matter declares plainly not onely the oppession of Lords upon their Wards but also the corruption even of the law it selfe that at the first aimed at the good of the publique and honour of Knightservice but now was degenerated into the base desire of profit by making market of the Wards estates and marriages that brought in strip and wast of Estates and niggardly neglect of the education and training up of the persons of the Wards and an imbasing of the generation of mankind and spoile of times Nor did these times ever espie or provide against the worst of these but onely endeavoured to save the estate by punishing the wasters in dammages by this law and by forfaiture of the Wardship by a Law made in the time of Edward the first Stat. Gloc. cap. 5. and this as well for waste done during the time of the custody as in the life time of his ancestors by another law in Edward the firsts time Stat. de vasto 20 E. 1. And because the Escheators and their under Officers used to serve themselves out of the estates of minors before they certified to the King his right and those were not within the Law of Magna Carta or at least not so reputed Artic. sup cart cap. 18. It was therefore afterwards provided that these also should render dammages in a Writ of wast to be brought against them The marriage of Wards shall be without disparagement cap. 7. It was an ancient law amongst the Germans and the Saxons brought it hither Tacitus mor. Germ. and as a Law setled it that marriage must be amongst equals but the Danes and Normans sleighted it and yet it continued and was revived Now as the Lord had the tuition of the Ward instead of the ancester so had he the care of the marriage in such manner as the ancester might have had if he had lived For in case the Ward were stolne and married the delinquent suffered fine and imprisonment Or if the ward married without the Lords consent he shall have the double value S at Merton cap. 6. and hold the land over till satisfaction But in case the Lord marrieth the Ward within fourteene yeeres of age to its disparagement cap. 7. he shall lose his Wardship thereby And if the Ward refuseth to accept of a marriage tendred by the Lord before her age of 16 yeeres West 1. c. 22. the Lord shall hold the Lands till he have received the full valew and in case where one tenant holdeth of
King and complained of that summons as of a common grievance be cause that neither they nor their ancestors were bound to serve the King in that Countrey and they obtained the Kings discharge under his broad Seale accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmaine Stat. Mortm 7 Edw. 1. which was made within the compasse of these times by which it was provided that in case Lands be aliened contrary to that Statute and the immediate Lords doe not seise the same the King shall seise them and dispose them for the defence of the Kinodome viz. upon such services reserved as shall suite therewith as if all the service of a Knight must conduce thereto and that he is no further bound to any service of his Lord then will consist with the safety of the Kingdome This was the doctrine that the sad experience of the later government of Kings in these times had taught the Knighthood of England to hold for the future ages Stat. de Militibus No tenant in ancient demesnes or in Burgage shall be distraimed for the service of a Knight Clerks and tenants in Socage of other Manors then of the King shall be used as they have been formerly Tenants in ancient Demesne and tenants in Burgage are absolutely acquitted from forraine service the one because they are in nature of the Kings husbandmen and served him and his family with victuall the other because by their tenure they were bound to the defence of their burrough which in account is a limbe or member of the Kingdome and so in nature of a Castle guard Now as touching Clerks and tenants in Socage holding of a subject they are left to the order of ancient use appearing upon record As concerning the Clergy its evident by what hath been formerly noted that though they were importunate to be discharged of the service military in regard that their profession was for peace and not for blood yet could never obtaine their desire for though their persons might challenge exemption from that worke yet their Lands were bound to finde armes by their deputies for otherwise it had been unreasonable that so great a part of the Kingdome as the Clergy then had should sit still and looke on whiles by the law of nature every one is engaged in his own defence Nor yet did the profession of these men to be men for peace hold alwaies uniforme some kind of warres then were holden sacred and wherein they not onely adventured their estates but even their own persons and these not onely in defensive way but by way of invasion and many times where no need was for them to appeare Tenants in Socage also in regard of their service might plead exemption from the warres For if not the plough must stand still and the land thereby become poore and lean Neverthelesse a generall service of defence of the Kingdome is imposed upon all and husbandmen must be souldiers when the debate is who shall have the Land in such cases therefore they are evocati ad arma to maintaine and defend the Kingdome but not compelable to forraine service as the Knights were whose service consisted much in defence of their Lords person in reference to the defence of the Kingdome and many times policy of warre drew the Lords into Armes abroad to keepe the enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Footmen in their Armies Concil Brit. 406. but the better and more wealthy sort of them found armes of a Knight as formerly hath been observed yet alwaies under the pay of the common purse and if called out of the Kingdome they were meere voluntiers for they were not called out by distresse as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law neverthelesse remaining still intire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword for though Kings pretended danger to the publique often times to raise the people yet the people would give credit as they pleased or if the Kings title were in question or the peoples liberty yet every man tooke liberty to side with that party that liked him best nor did the Kings proclamation sway much this or that way It s true that presidents of those times cry up the Kings power of arraying all ships and men without respect unlesse of age or corporall disability but it will appeare that no such array was but in time of no lesse known danger from abroad to the Kingdome then imminent and therefore might be wrought more from the generall feare of the enemy then from the Kings command and yet those times were alwaies armed in neighbouring Nations and Kings might have pretended continuall cause of arraying Secondly it will no lesse clearly appeare that Kings used no such course but in case of generall danger to the whole Kingdome either from forraine invasion as in the times of King John or from intestine broiles 21 E. 1. rot 81. as in the times of Henry the third and the two Edwards successively and if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that generall arrayes were not levied by distresse till the time of Edward the first 23 E. 1. Memb. 5. and then onely for the rendezvouz at the next Sea coast and for defence against forraine invasion in which case all subjects of the Kingdome are concerned by generall service otherwise it can come unto no other account then that title prerogative and therein be charactered as a tricke above the ordinary straine Fourthly those times brought forth no generall array of all persons between the ages of sixteen yeeres and sixty that was made by distresse in any case of civill warre but onely by Sheriffs Summons and in case of disobedience by summons to appeare before the King and his Councell which sheweth that by the common law they were not compelable or punishable Lastly though these arraies of men were sometimes at the charge of the King and sometimes at the subjects own charge yet that last was out of the rode way of the Subjects liberty as the subsequent times doe fully manifest And the like may be said of arraies of ships which however under command of Kings for publique service were neverthelesse rigged and payed out of the publique charge The summe of all will be that in cases of defence from forraine invasion Kings had power of array according to the order of Law if they exceeded that rule it may be more rightly said they did what they would then what they ought
this day hold the last in custome to all intents whatsoever The last branch provideth the remedy to recover to the heire his possession in case it be detained either through doubtfulnesse of age of the heire or his title and it directs the issue to be tried by twelve men This triall some have thought to be of Glanvils invention and it may well be that this triall of this matter as thus set down was directed by him yet he useth often in his booke the word solet and in his preface saith that he will set down frequentius usitata and its past question but that the triall by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the widdow of the tenant whose dower is not onely provided for but her reasonable part of her husbands personall estate The originall hereof was from the Normans and it was as popular as that of Wardships was Regall and so they made the English women as sure to them as they were sure of their children The Justices shall by Assize try disseisins done since the Kings 10. comming over Sea next after the peace made between him and his sonne This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that worke which formerly belonged to the County courts Glanv lib. 13. cap. 33. and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the writ is from the Kings last voyage or going into Normandy Justices shall doe right upon the Kings writ for halfe a 11. Knights fee and under unlesse in cases of difficulty which are to be referred to the King The Justices itinerant ended the smaller matters in their circuits the other were reserved to the King in his bench Justices shall inquire of Escheates Lands Churches and 12. women in the Kings gift And of Castle guard who how much and where So as the Judges itinerant had the worke of Escheators and made their circuits serve as well for the Kings profit as Justice to the subjects They used also to take fealty of the people to the King at one certaine time of the yeere and to demand homage also These matters of the Kings Exchequer made the presence of the Judges lesse acceptable and it may be occasioned some kind of oppression And as touching Castleguard it was a tenure in great use in these bloody times and yet it seemeth they used to take rent instead of the personall service else had that enquiry how much been improper 13. Of a tenants holding and of severall Lords That one man may hold severall lands of severall Lords and so owe service to them all is so common as nothing can be more neverthelesse it will not be altogether out of the way to touch somewhat upon the nature of this mutuall relation between Lord and Tenant in generall that the true nature of the diversity may more fully appeare The foundation or subject of service was a piece of land or other tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the tenant undertooke to performe service to the Lord Glanv lib. 9. cap. 4. and the Lord undertooke protection of the tenant in his right to that tenement The service was first by promise solemnly bound either by oath which the Lord or his deputy by the common law hath power to administer as in the case of fealty in which the tenant bound himselfe to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the tenement so given or otherwise by the tenants humble acknowledgement and promise not onely to performe the services due but even to be devoted to the Lords service to honour him and to adventure limbe and life and to be true and faithfull to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to each For though it be true that by promise of being the Lords man a generall service may seem to be implied yet in regard that it is upon occasion onely of that present tenure it seemeth to me that it is to be restrained onely to those particular services which belong to that tenement and therefore if that tenement be holden in soccage although the tenant be bound to homage yet that homage ties not the tenant to the service of a Knight Lit. lib. 2. cap. 5 nor contrarily doth the homage of a tenant in Knight service tie him to that of socage upon the command of his Lord though he professeth himselfe to be his man Nor doth the tenants homage binde him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for severall tenements Glanv lib. 9. cap. 1. Lib. 7. cap. 10. and these two Lords be in warre one against the other the tenant must serve his chiefe Lord of whom the capitall house is holden or that Lord which was his by priority who may be called the chiefe Lord because having first received homage he received it absolutely from his tenant but all other Lords receive homage of such tenant with a saving of the tenants faith made to other Lords and to the King who in order to the publique had power to command a tenant into warre against his own Lord. If therefore he be commanded by the King in such cases unto warre he need not question the point of forfeiture Glanvil lib. 9. cap. 1. but if he be commanded by a chiefe of his other Lords into warre against a party in which another of his Lords is engaged his safest way is to enter upon the worke because of his allegiancc to that Lord yet with a salvo of his fealty to that other Lord. Ibid. cap. 4. But in all ordinary cases tenants and Lords must have regard to their stipulation for otherwise if either breake the other is discharged for ever and if the fault be in the tenant his tenement escheats to his Lord and if the Lord faile he loses his tenure and the tenant might thence forth disclaime and hold over for ever Neverthelesse the Lords had two priviledges by common custome belonging to their tenures which although not mentioned in the stipulation were yet more valuable then all the rest the one concerning matter of profit the other of power That of profit consisted in ayds and reliefe The ayds were of three kinds Ibid. c. 8. one to make the Lords eldest sonne Knight the other to marry his eldest daughter the third to helpe him to pay a reliefe to his Lord Paramont which in my opinion
sounds as much as if the tenants were bound by their tenures to ayd their Lord in all cases of extraordinary charge saving that the Lord could not distraine his tenant for ayd to his warre and this according to the Lords discretion Ibid. for Glanvile Glanv l. 9. c. 8 saith that the law determined nothing concerning the quantity or valew of these ayds These were the Norman waies and savoured so much of Lordship that within that age they were regulated But that of reliefes was an ancient sacrifice as of first fruits of the tenement to the Lord in memoriall of the first Lords favour in conferring that tenement Ibid. and it was first setled in the Saxons time The Lords priviledge of power extended so farre as to distraine his tenants into his own Court to answer to himselfe in all causes that concerned his right and so the Lord became both Judge and party which was soon felt and prevented as shall appeare hereafter Another priviledge of the Lords power was over the tenants heire after the tenants death in the disposing of the body during the minority and marriage of the same As touching the disposing of the body the Lord either retained the same in his own power Glanv 7.10 or committed the same to others and this was done either pleno jure or rendring an account Ibid. c. 12. As concerning the marriage of the females that are heires or so apparent the parents in their life time cannot marry them without the Lords consent nor may they marry themselves after their parents death without the same and the Lords are bound to give their consent unlesse they can shew cause to the contrary The like also of the tenants widdows that have any dowry in the lands of such tenure And by such like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons 14. Of the power of the last Will. It is a received opinion that at the common law no man could devise his lands by his last will If thereby it be conceived to be against common reason I shall not touch that but if against custome of the ancient times I must suspend my concurrence therewith untill those ancient times be defined for as yet I finde no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all conveyances Voluntas donatoris de cetero observetur And therefore nothing was more ordinary then for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. M. Paris An. 1216. Hoveden An. 1199. Malmsb. nov l. 1. Malmsb. l. 3. Thus King John appointed Henry the third his successor and Richard the first devised the Crown to King John and Henry the first gave all his lands to his daughter and William the Conquerour by his last will gave Normandy to Robert England to William and to Henry his mothers lands If then things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller free holds should be of too high esteem to be credited to such conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposall of the last will of the possessour nor doe I thinke that either they were thus in this Kingdome or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vaine Glanvil l. 7. cap. 1 5. I have observed the words of Glanvile concerning this point and I cannot finde that he positively denieth all conveyance of land by Will but onely in case of disherison the ground whereof is because its contrary to the conveyance of the law and yet in that case also alloweth of a disposing power by consent of the heire which could never make good conveyance if the will in that case were absolutely voide and therefore his authority lies not in the way Nor doth the particular customes of places discountenance but rather advance this opinion for if devise of lands were incident to the tenure in Gavell kind and that so generall in old time as also to the burgage tenures Ll. Gulielm cap. 61. which were the rules of Corporation and Cities Vbi leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common law And therefore those conveyances of lands by last will that were in and after these times holden in use seem to me rather remnants of the more generall custome wasted by positive lawes then particular customes growing up against the common rule It s true that the Clergy put a power into the Pope to alter the law M. Paris An. 1181. Hoved An. 1181. Decret Alex. pap Hoveden fo 587. as touching themselves in some cases for Roger Archbishop of Yorke procured a faculty from the Pope to ordaine that no Ecclesiasticall persons Will should be good unlesse made in health and not lying in extremity and that in such cases the Archbishop should possesse himselfe of all such parties goods but as it lasted not long so was himselfe made a president in the case for being overtaken with death ere he was provided he made his will in his sicknesse and Henry the second possessed himselfe of his estate And it s as true that Femme coverts in these daies could make no will of their reasonable part Glanv l. 7. cap. 5 16. because by the Saxon law it belonged joyntly to the children Nor could usurers continuing in that course at the time of their death make their will because their personall estate belonged to the King after their death and their lands to their Lords by escheate although before death they lie open to no censure of law but this was by an especiall law made since the Conquerours time for by the Saxon law they were reputed as outlaws Neverthelesse all these doe but strengthen the generall rule Ll. Edw. 37. viz. that regularly the last will was holden in the generall a good conveyance in law If the will were onely intended and not perfected or no will was made then the lands passed by descent and the goods held course according to the Saxon law Glanv l. 7. c. 6. cap. 8. viz. the next kinsmen and friends of the intestate did administer and as administrators they might sue by Writ out of the Kings court although the Clergy had now obtained so much power as for the recovery of a legacy or for the determining
may see the great difference between the Prince and the King in one and the same man The most part of those laws were little other then plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergy and therefore delivered the last law in a petitionary way to the Clergy because it concerned the execution of justice in prohibited times and yet bound up all with a salvo to himselfe and his prerogative like a wise King that would neither loose right nor doe wrong nor yet stickle to debate with his subjects now when as his eye was upon a further marke Walsing 46. For Leolin the Prince of VVales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to runne its course that he might have done the sooner Otherwise he had a seed of his fathers conceit that laws are not made for Kings as appeared afterward for after he had gotten his army into the field he tooke a fifteenth which was granted to his father and this was inaudito more M. West An 1276. but there was no disputing with power and therefore the subject must be contented rather to score it up against the future then require present pay so dangerous a thing it is for England that Kings should have occasion to gather armies though for never so honourable imployment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine yeeres travell before they could attaine the shore although it had been often within their view It may be the King found it advantagious for his government to maintaine an Army in the field under the colour of the Welsh warre that he might more bow his subjects to his own bent for during these warres the King made many breathings and tooke time to looke to the husbanding of his own revenue as those Ordinances called Extenta manerii and Officium coronatoris doe witnesse and the Statute of Bigami But the people were not altogether yet tamed for the times being still in warres and they occasioning much waste of treasure put the King to the utmost pitch of good husbandry and one degree beyond the same so as under colour of seising his own he swept up also the priviledges and liberties of his subjects M. West Polyd. virg some authours reciting the complaints of the Church men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another combuston had not the meeting at Glocester setled things for the present by referring the right of franchises to debate in the Eyer and ordering reseisure of such liberties into the subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth chapter of the Statute of Bigami Neverthelesse however debonaire the King seemed to be the sore between him and his subjects was not fully cured nor did the Lords trust him further then needs must for whether they served in the field or met at councell still they were armed and during this daring of each other were many profitable lawes made whiles neither party durst venture bloodshed in touching too nigh upon the priviledges of each other principally because the affaires in Wales were but laid asleepe and upon reviving might turne the ballance to either side The wars awake againe and therein are consumed nigh five yeeres more of the Kings reigne so as what ever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the prerogative of the Crown at home Nor had he scarcely breathed himselfe and army from the Welsh wars but he found both France and Scotland his enemies at once The King faced onely the first and fought the second which held him work the remainder of his daies at the same time also he arred both the Clergy and Laity at his own home as if providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the world whether his justice was spontaneous or by necessity for as yet he held the grand Charter at parley and therefore was rather eyed then much trusted Albeit he was put upon confidence in the subjects discretion for ayd of him in his continuall undertakings nor did they disclaime him herein however chargable it was for all seem willing he should be imployed any where so as not within the foure Seas It s probable the King knew it and therefore having made a voyage into France he changed the Scene of warre but to the other side as it were of a river in hope his Lords would follow but it would not be this angred him and he them nor would his Clergy allow him any ayd papa inconsulto and therefore he outs them from his protection these and his irregular preparations for warre by summons not onely of his Knights but all other that held Land worth 20 li. per annum Walfing 69. and taxes imposed by an arbitrary way increased rancour into a kind of state scoule little better then a quarrell for appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the grand Charter at the long runne and allowed it as the common law of the Kingdome and seconded the same with many succeeding confirmations in the 27 25 Edw. 1. 28 yeeres of his reigne as if he had utterly renounced all thought of a contrary way but the Stat. in his 28th yeere had a sting in the taile that was as ill as his saving of ancient ayd and prisals which was in the Stat. of confirmation of the Charters though it were omitted in this Stat. for the saving was of such a sence as time and occasion would move the Kings heart to make it and thus this Statute became like a Hocus pocus a thing to still the people for the present and serve the Kings turne that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good successe and the terrour of those that had stopped the broad way of his extravigant prerogative and therfore looks bigge rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his warres in Flanders all come and submit and as
common law and Kings prerogative would agree thereto The complaints are of this natures 1. That the Church-possessions in their vacances are wasted and that Escheators doe not onely seise the personall estate of the Abbot or Prior deceased but such Corne in the barne and other goods belonging to the houses for their maintenance as also the profits of Churches impropriate 2. 3 4 5. Elections are either disturbed by the Kings Letters praeceding or by delay of the Royall assent subsequent the said elections 6. The Lay power without the advice of the Clergy doe put in eject or restore incumbents to Benefices voyd 7. Prelates are summoned to answer to the Lay power in the Writs Quare excommunicavit and Quare non admisit 8. Clerks are distrained in their Lay fees to answer before the Lay power in action of debts trespasse or other personall actions and in case they have no Lay fees the ordinary is distrained by his Barony to cause the Clerke to appeare 9. The Laity are forbidden to take oath or to inform upon oath before the Prelates and to obey Prelates commands in such cases 10. Persons taken and imprisoned upon excommunication are ordinarily dismist without satisfaction unto the Prelate and sometimes are not taken by the Sheriffe 11. 12. 33. 13. notwithstanding the Kings Writ and as well the King as his Officers doe ordinarily communicate with such as are excommunicated and likewise command others to communicate with them 14. Clerks imprisoned for felony are refused to be delivered to the Ordinary unlesse upon security to appeare before the Justices in Oyer 15. and sometimes are hanged before their Ordinary can demand them and sometimes their heads are all shaven that they may not appeare to be Clerks 16. Justices itinerant doe imprison Clerks defamed for felony or otherwise outlaw them if they doe not appeare And otherwise proceed against Clerks after their purgation before the ordinary 17. 18. The Lay power seises upon the estates of Clerks degraded for crimes 19. Clergy are compelled to answer and give satisfaction for offences against the forrest laws 20. before the Lay power And in case of default the Bishop by distresse is compelled to order satisfaction 21. as well in such cases as in person all actions 22. Priviledges of Sanctuary are invaded by force 23. Executors of Bishops are hindred from administring the estate without licence first obtained from the King 24. The Kings tenants goods are seised after their decease by the Kings Bailiffs 25. Intestates goods are seised by their Lords and their Ordinary hindred from administration 26. The Kings prohibition passeth in case of Tythes and Chappels 27. The like in cases of troth-plight perjury cerage heriet or other Church duties as money for reparations of Churches and fences in Churchyards 28. pecuniary punishment for Adultery 40. 29. and costs of suit in Ecclesiasticall court sacriledge excommunication for breach of the liberties of the Church contrary to the grand Charter 30. In cases of prohibition if the Ecclesiasticall Judge proceed contrary to the same he is attached and compelled to shew his acts in Court if the Lay Judge determine the cause to be temporall the Ecclesiasticall Judge is amerced if he proceed against the prohibition and it s tried by witnesses of two ribaulds and in case it be found for the Ecclesiasticall Judges cognisance 31. yet there is no costs allowed for such vexation 32. That Jewes in matters Ecclesiasticall aforesaid are by the Kings prohibition drawn from the Ecclesiasticall Judge unto the Lay Magistrate 34. Question about Lands given in Frankalmoine are tried in the Lay courts 35. 36. 37. 38. and by reason of such tenure the owners though Clergy men are compelled to doe suite at the Lay courts and are charged with impositions and are distrained hereunto although the Lord have other Land of the Donor in Frankallmoine subject to his distresse 39. Prelates summoned to higher Courts are not allowed to make atturnies to appeare for them in the inferior civill courts 41. Grantees of murage or other unwonted impositions compell the Churchmen to pay the same 42 43. The Clergy are charged with Quarter Cart-service and purveying 44. The chancery sendeth out new Writs contrary to the liberties of the Church and the law of the Land without the assent of the Councell of the kingdome Princes and Prelates 45. The King doth compell the Clergy to benevolences to the King at his voyage into forraine parts 46. Amercements granted to Clergy men are turned into fines by the Justices and by them taken 47. Clergy men are fined for want of appearance before the Justices itinerant and of the Forest upon common summons 48. Quo warrantoes granted against the Clergy for their liberties and the same seised unlesse they be set down in expresse words in their Charter 49. 50. notwithstanding that by long custome they have enjoyed the same and many times contrary to expresse grant This is the summe of their paper of grievances and because they found the King either wilfull or unconstant they resolve upon a remedy of their own by excommunication and interdiction not sparing the persons of any principall or accessory nor their Lands no not of the King himselfe and for this they joyn all as one man Now what scare this made I know not but Henry the third in the Stat. of Marlb and Edward the first in his Stat. at Westminster and other Satatutes the first spake faire and seemed to redresse some of these complaints as also did Edward the second and yet the Common law lost little ground thereby That which Henry the third did besides his promises of reforming was done in the Stat. of Marlbridge The successors of Abbats Priors and Prelates Marlbr c. 29. c. shall have an action of trespasse for trespasses done nigh before the death of their predecessors upon the estates of their Corporations And shall prosecute an action begun by their Predecessors And also shall have an assize against intruders into any of the possessions belonging to the said Corporations whereof their predecessors died seised This might seem a remedy provided against the first malady complained of and questionlesse bound all but the King and so might perchance abate somewhat the edge of that Article But it being the Clergies reach to grow rich and the Popes cunning to help on that worke that they might be as stores for supply of his treasury and had forbidden Abbats and other Prelates c. the liberty of disposing their estates by last Will. Kings therefore as supreame patrons to these bodies in their vacances used to seise all the estates of the Prelates with the temporalties to their own use as well to preserve the riches of the kingdome to it selfe and the possessions of such Corporations from spoile as to be a cloke of their own covetousnesse And under the estates of the Prelates or heads of these Corporations all the
passe before the party was indicted Stat. de asport relig 35 E. 1. No religious House shall be charged with taxe to any superiour without the Realm of England nor shall send to any visitation out of England This was neither at the request of the Clergy nor act of kindnesse intended unto them but for the good of the Kingdome to prevent the bleeding of the treasure of the Kingdome into forraine parts Mag. carta cap. 35. Patrons of Abbies shall have their custody during their vacancies This was the ancient Law now revived by the Clergies consent and intended for the safegard of the Revenues of the Houses and their maintenance and therefore it s with a sicut superius dictum est cap. 5. Stat. de prisis Edw. 2. The goods of the Clergy freed from purveyance unlesse they will It was a favour given by Edw. 2. to the Clergy to gaine their good will after the death of Gaveston the shamefull defeat received in Scotland and some particular testimonies of Gods displeasure whereof he began to be somewhat sensible Stat. de quo Warranto 18 Edw. 1. Franchises holden by prescription or charter confirmed and trials by Quo warranto allowed to be in eyer It was the common share of the great men but especially of the Clergy to have their franchises exposed to the prey of the Eagles or to such as hauked for them and its likely the King had not so easily forgone his prise if all the fat had faln to his own share but perceiving that more benefit came to his instruments then was meet and himselfe little the better thereby he sacrificed his Judges to the people but it was to his own behoofe and so gained both credit and favour from the people and profit to himselfe and in some measure satisfied the 48 49 50. Articles of the Clergies complaint in the time of Henry the third and the 15th Article of their last complaint Lands or Tenements aliened to a Religious house shall escheate to the Lord Mag. carta cap. 37. if the alienor take the same backe to hold of that house The ground hereof principally was the prejudice done to the Lord by destruction of the tenure albeit that it had been an ancient grievance complained of in the Saxon times that the Clergy were covetous and swallowed down estates and thereby weakned the Kingdome But now they are become even cheaters serving the turnes of treacherous tenants that would give their Lands by compact with the Church men to receive them againe from them to hold of the Church which was a liberty that men thirsted after in those times wherein the Church men were more adored then their Images Bracton lib. 1. fo 13. Coke 2. instit super Magna carta cap. 36. p. 74 75. Bracton lib. 2. cap. 10. fo 27. It seems this Law was made after Bractons time if that be true in the second institutes for he saith that a man may give his lands to any one whether Christian or Jew or religious person and nothing shall hinder it but the speciall reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his tenure albeit the gift be in free almes Neverthelesse it seemeth to be such restraint as the Templers and Hospitallers were faine to find out a new way which was to protect mens tenements from execution of law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. Stat. West 2. cap. 33. provided a law to make this also in nature of a Mortmaine within the Statute made in the seventh yeere of his reigne called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmaine the Lord should have liberty to enter if he failed then the Lord paramont Stat. de Religiosis 7 E. 1. or if he failed the King should enter and dispose of the same and that no licence of Mortmaine should be sued out but by the mean Lords assent and where part of the premises remaine still in the Donor and the originall Writ mentioneth all the particulars And thus at length was this issue for the present staied which hitherto wasted the strength of the Kingdom Stat. de Amortizandis terris M. West An. 1280. Mag. carta cap. 39. and by continuall current emptying it into the mare mortuum of the Clergy consumed the maintenance of Knight service by converting the same to Clerk-service No Iudge shall compell a free man to make othe without the Kings command Miror Just cap. 5. sec 3. So is the sence of the law rendred by an ancient authour and I hope I shall not wrong the Text if I affirme that the Ecclesiasticall Judge was included within the equity though properly he be not Balivus for the Law intends to shew that its a liberty that the subject hath not to be compelled to take oath without the Kings especiall command and by consequence it sheweth also that the King at that time and untill then had the directory of oathes for it was an ancient liberty given in the Kings charters unto such as they pleased viz. to impose oathes Malimsb de gest Reg. lib. 2. and to punish for breach of oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abby of Glastenbury amongst other Athas Ordulas and the Churchmen that first procured vacations from suits of law during holy times procured a law also to be setled by Edward the Saxon King and Gunthurne the Dane Ll. Edw. cap. 9. that Ordeale and oathes should be forbidden upon the holy Feasts and lawfull fasts And a wonder it is how it escaped the gripe of the Clergy so long who catched at any thing that had but a glance of Gods worship in it And if this were the subjects liberty not to be compelled to sweare surely much more not to be compelled to accuse himselfe unlesse by the law he be especially bound Bracton lib. 3. cap. 7 fo 106. for it is Glanviles rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curiae But the power of the Clergy now was grown strong and they begin to remember themselves and that oathes are of a holy regard and they men for holinesse best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claime and to make a sure title they get a grant from Pope Innocent to Steven Langton Archbishop of Canterbury of a faculty of licencing administration of oathes during the time of Lent and he accordingly enjoyed it during the mad time of Henry the third But Edward the first quarrelled it and left it questionable to Edward the second who being in his condition as a
should finde two compleat horses And another order of Aetheldred nigh 80 yeeres after differing from it assessed upon every eight hides of Land a Helmet and a coate of Maile and the Historian tels us that a Hide is a plough land Huntington An. 1008. Ll. Canut 97. or so much land as one plough can keepe in tilthe one whole yeere and the reliefe of the Noblemen of all sorts and ranks in Horses Helmets coates of Maile Lances Shields and Swords the meanest of all which degrees being called Mediocris Thainus yeelding a reliefe equall to the Armes of a Knight in the times whereof we now treat viz. one Horse one Helmet one coate of Maile one Lance one Shield one Sword all comprehended under arma sua as if he had a certaine proper Armes and the Laws concerning the forfaiture of Armes doe in effect affirme the thing viz. that all men were armed yet probable it is that Laws were not then so often made for the inforcing this or that particular sort of Armes in regard that till the Normans time this Island was troubled but seldome with any enemies from forraine parts that brought any new sorts of weapons into fashion the Danes and Norwegians being no other then an old acquaintance of theirs Neither were the Saxons as yet tamed by any enemy so farre as to begge a peace albeit that the Danes had gotten them under But after the Norman times the English being somewhat overmatched in warre inclined more to Husbandry and began to lay aside their regard of Armes and this occasioned the Kings to make assessments of Armes yet having regard to the ancient course of the Saxons saving that they urged the use of the Bow more then formerly was used and thereby taught the conquered to conquer the Conquerours in future ages Of these sorts of assessments before this Statute at Wintin I finde but two the first made by Henry the second and the other by Henry the third which together with that of this Statute I parallell thus together in their own words Hen. 2. Hen. 3. Stat. VVint.  Lands Goods  Knights fee 15 Librat 60 Marks 15 li. land 40 marks goods Loricam Caffidem Clipeum Lanceam Loricam Capellum ferri Gladium Cultellum Equum Loricam Capellum ferri Gladium Cultellum Equum Hauberk Shapell de fer Espee Cotell Chivall 16 Marks chatels rents 10 Librat 40 Marks 10 li. lands 20 marks goods Halbergellum Capelletum ferri Lanceam Halburgettum Capellum ferri Gladium Cultellum Halbertum Capellū ferreum Gladium Cultellum Hauberk Shapell de ferr Espee Cotell 10 marks chatels rents 100 s. 20 marks 100 s. land VVanbais Capelletum ferri Lanceam Purpunctum Capellū ferreum Gladium Lanceam Cultellum Purpunctum Capellū ferreum Gladium Cultellum Purpoint Shapell de ferr Espee Cotell  Betwixt 5 l. 40s 9 Marks Betwixt 5 l. 40 s.  Gladium Cultellum Arcum sagit Gladium Arcum sagit Cultellum Espee Arke setes Cotels  under 40 s. under 9 marks to 40 s. under 40 s.  Falces Gisarmas Cultellos c. Falces Gisarmas c. Faulx Gisarmes Cotells    under 20 marks goods    Espees Cotels I have thus impaled these three that the Reader may the better discerne how they relate each to other and so may the better understand the matter in the summe And I must explaine three or foure words in them as they are set down before I can bring up the conclusion because the mistake of the sence of the words hath made some mistake the intent of the thing and force the same to an unwarrantable issue Lipsius de milit Rom. lib 3. Dialog 6. Lorica signifies that piece of Armour that defends the breast or forepart of the body and sometimes is made of plates of Iron of which sort I conceive those of the old Germans were whereof the Historian maketh mention Tacitus pauces loricae he saith the Germans had few Armes of defence of their foreparts and fewer Helmets or Headpieces for otherwise if they had Iron defences for their heads they would not have been content with defences made of Lether for their foreparts as in the first rude times they might have been Ciuer Germ. p. 339. 34. Sometimes it s made of links of Iron and commonly is called a coate of Maile but I conceive it cannot be so meant in the assessments of Henry the second and Henry the third because that those of the second degree are said that they ought to keep Haubergettum or Halburgellum or Haubertum all which are but severall dialects of one name and are taken for a coate of Maile and therefore by the diversity of names in one and the same assessment I doe conclude that the Armour was not of one and the same fashion But it s evident that by Hauberk in the assessment of the Statute at Wint. is meant a coate of Maile and is never taken for a Brest-plate or Gorget as hath been taken upon trust by some that build more weighty conclusions upon that weake principle then its able to beare and for the truth hereof as the word is a French word so I appeale to all French Authors and shall not trouble the reader with the notation of the word or further about the meaning thereof In the last place as great mistake is that also of the word Shapell de ferr which is taken by some to betoken a brest-plate of Iron For the truth whereof the Reader may consider the Latine word Capellum or Capelletum and he shall finde that it is an Iron cap or an ordinary Head-piece and in the Assize of Henry the third it holds the place of Cassis in the Assize of Henry the second for the manner of all these let the Reader view the sculptures of the severall Norman Kings armed for the charge in the beginning of their severall reignes as they are represented in Speeds History It may also be conceived that there is as much mistake of that weapon which is called cultellum or cotell whiles they translate it by the word Knife for though it be true that it is one signification of that word yet it appeares not onely by this law that it was a weapon for a Knight in warre but in use at Torniaments as by that Statute that forbids the use of a pointed Sword or pointed Cottell a Battoone or a Mace at that sport and therefore it may seem to be some weapon of greater use either a Cotellax or such like weapon otherwise to enjoyn the finding of a Knife to a man as an offensive weapon against armed men in battell would serve to no use at all Now concerning the difference between the severall Assizes aforesaid it consisteth either in the number of the severall degrees or rankes of those that are assessed or secondly in the manner of their valuation or lastly in the particulars of their armes assessed upon them As
touching the degrees in Henry the seconds time they were but three in regard that he onely assessed free-holders and certainly that was the ancient Law as by the law of the Conquerour and other Saxon laws formerly mentioned may appeare But Henry the third taking example of King Iohn who was the first founder of generall arrayes charged all but such as were men of nothing albeit I finde not that such as were of the inferiour degree were sworn to those Armes but rather allowed to have them And though the Statute at Winchester holdeth to the same degrees in Lands yet in the valew of goods there is some difference in favour of them that onely have stocke and no freehold Secondly there is some difference in the manner of valuation of Lands with Chattels and therein the Statute at Winton favours the personall estates more then Hen. 3. and he more then Hen. 2. and yet all of them pretend one rule of ancient custome I believe they mean that they had it in their eye but not in their heart for they would come as nigh to it as they could and yet keep as farre from it as they durst Thirdly as touching the difference of the Armes between these three assessments it seems so small as in this they are most of all one For wherein Hen. 2. leads both Hen. 3. and Edw. 1. doe imitate saving that they adde the Horse and Sword which questionlesse was to be understood as a granted case that the compleat Armes of a man could not be carried and mannaged without a Horse nor defended without a Sword As touching other alterations it might be done upon good advice as not being deemed meet that such as were no Knights but in estate should be armed in every respect like as the Knights were And thus we have an ancient custome of maintaining Armes by every free man for the defence of the Kingdome first made uncertaine by the avarice of Kings and negligence of the free men and brought into an arbitrary charge at length reduced to a certainty upon all sorts of inhabitants by a Statute law if so it then were unto which every man had yeelded himselfe bound by his own consent But to what end is all this I said it was for the defence of the Kingdom and so it was in the originall and yet also for the safety of the King in order thereunto and for the safety and maintenance of the peace of every member of the whole body This in one lumpe thus will not down with some who will have this assessment onely to be for keeping of the peace against routs and riots but not sufficient not intended to be supply for warre when Edward the first cals for it because Edward the first shall not have his power confined within the compasse of a Statute but to be at liberty of array as he should think meet and it s not to be denied but the words of this Law runne thus viz. That the intent thereof is for preserving of the peace but those generall words will not beare the power of a restrictive sence for certainly the peace is as well preserved by providing against warre as against riots and against forraine warre as intestine mutinies and that the Statute intended the one as well as the other will appeare because it was made in relation to former presidents of Henry the third and they speak plainly that their intent was to strengthen the Kingdome against dangers from abroad the words of the Historian are cleare that Henry the third charged all that had 15 libratas terrae and upwards should undertake the Armes of a Knight ut Anglia sicut Italia militia roboraretur M. Paris fo 926 And because he had threats from beyond Sea by the defection of the Gascoines therefore he caused Writs to issue forth throughout the Kingdome that secundam pristinam consuetudinem M. Paris fo 864 assessement of Armes should be secundum facultates and in one of the Writs published by the Historian the expresse assessment of Hen. 3. formerly mentioned is particularly set down Vid. post Adversaria M. Paris Nor are these Armes thus assessed so slight as men would pretend for the Armes of the first ranke were the compleat Armes of a Knight and their estates equall thereunto for those 15 libratae terrae amounted unto 780 acres of Land as the late publisher of Paris his History hath it and is very nigh the reckoning of Henry Huntington who as hath been mentioned layeth a Helmet and coate of Maile unto eight hides of Land which according to Gervase of Tilburies account commeth to 800 acres Cap. penalt every Hide containing one hundred acres These therefore were better then Hoblers And the succeeding ranks found Armes also proportionable to their estates as considerable as the times could finde for such as were of constant use and might be supplied with other weapons as occasion served and as they might be of most benefit for the service Furthermore whereas it s said that the wisdome of the Parliament might be questioned if they intended no better provision against an enemy then against a thiefe or rogue I should desire the consideration of those men whether are those thieves and rogues in Troops or bodies and well armed or are they a sort of scattered out-lawes lightly armed to flie away when they have have gotten the prey If they were in the former posture I pray what difference in point of difficulty of suppressing between them and so many enemies and if it was discretion in the Parliament to make this provision against the one certainly these with the Knighthood of the Kingdome with as much discretion will be sufficient provision against the other But if these be looked upon in the latter sence I feare the discretion of the Parliament would have been much more questioned in arming all men that have any ability to suppresse Thieves and Rogues against which the ordinary watch and ward of the Kingdom was an ancient and approved remedy and sufficient safeguard And I would fain know of these men whither it be for the safety of Edward the first or any other King to arme the whole body of the people especially in times of jealousie for suppressing of Thieves and Robbers when as it may be done by a guard of known men in every County with much more ease and lesse charge to the people Lastly whereas it s endeavoured to make this Statute but a temporary provision and taken up for the present condition of affaires when Thieves and Robbers went with great strength and in multitudes This might be I grant of some efficacy if it had been introductio novi juris but it being grounded upon a former custome the ground of that custome which was defence of the Kingdom must be the warrant of the Law otherwise the present inconvenience might be remedied by a present order and needed not the help of a Law that should rest upon former custome
of all Glanvil lib. 14. cap. 1. although the most heynous of all was in the same condition As touching breakers of prison in these times it was felony for what cause soever they were committed and therefore their imprisonment was without baile for who so makes no conscience of breaking the prison his credit will little availe yet it must be acknowledged that the Law imprisoned few without baile in those foregoing times but in case of felony or execution but afterwards the cases of commitment being ordinary even in matters of mean processe and because mens credits waxing weake by the weaknesse of their estates now wasted by the civilwars there fore in Edward the seconds 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 its manifest that within five yeeres before the making of this law it was complained that such were set at liberty by the Kings Writ de homine replegnando without the Bishops consent Addit M. Paris But now the Clergy 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 then that of the Canon for the common law ever held the supreame cognisance of Excommunication within its own power as upon the Writ de quare excomunicato may appeare Other crimes are yet also by this law allowed baile 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 baile be granted otherwise then the law alloweth the party that alloweth the same shal be fined imprisoned render dammages 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 forgoe that which was in account a great liberty to stop the course of a growing mischiefe Spreaders of false news West 1. cap. 34. 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 maintaine an ill conceipt in the King of the people or an ill conceipt in the people of the King and it s 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 mans parson all men are equally bound by that woe if they call good evill or evill 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 maintaine indictment 33 Edw. 1. suit or quarrell and it was likewise finable Merton cap. 3. Redisseisors and post disseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly redisseisin was under no other Law then that of disseisin but by this law made a matter belonging to the Crown and tried before the same Judges that had the power of inquiry of all offences against the Crown The penalty of imprisonment in this case was to be without baile Marlbr cap. 8. but onely by the Kings Writ de homine replegiando and yet even thus the penalty was not sufficient to restraine the offence and therefote a law was made to abridge the power of that Writ West 2. cap. 26. 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 dammages Trespassers upon Parks West 1. cap. 20. Trespassers in Parks and Fishponds convicted within a yeere and a day shall render dammages suffer imprisonment for three yeeres 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 greatnesse 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 layd aside yet the violence of these times being such as though felonies were somewhat dreaded trespasses 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 Merton cap. 11. though by Henry the third in his first time when as yet the government was not worsted by projects of arbitray power or corrupt counsels of forrainers nor himselfe a man able to sway with the Lords in matters that were of doubtfull prerogative And to speake indifferently its better for the liberty of the subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by law then by the warrants of great men especially in their own cases and therefore in this matter the Kings prerogative was a patron to the freemens liberty Neverthelesse these great men give not thus over their game for though in times of publique 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 obtaine prisons to their own use as they endeavoured at the meeting at Merton yet now they obtaine the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the losse of their pleasure And yet this law sufficed them not but they obtaine a further priviledge An. 21. Edw. 1. that such persons as are found so trespassing and refusing to submit may be killed without perill of felony CHAP. LXX Of the Militia during these Kings reignes THe Souldiery of England may be considered first in regard of the persons Secondly their armes 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 plow and concerning them both it is to be considered what the law made by Edward the second holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood Stat. de Milit. 1 E. 2. if they shew not cause to the contrary Regularly all tenants by Knightservice ought to be Knights but de facto were not so as in these times there was a