and being trained up even from the Cradle in the English garb moralized by Learning and now admitted into the Throne found it the wisest course to apply himself to the rule of an English King viz. To win and maintain the good opinion of the people by consorting together with them under one Law and pledging himself thereto by taking unto Wife one of the English Blood-royal by this means he refeised and reassumed the English in partnership with the Norman in their ancient right of Government and reconciled the minds of the people under a lively hope of enjoying a setled Government Nor were they greatly deceived herein for his course was less planetary than that of either of his predecessors and yet we find little said of his parley with his people in a Parliamentary way although more of his Laws than of any of his predecessors The reason will rest in this that the Writers of those times touch more upon matters of ordinary than political observation and regarded rather the thing than the place or manner how The Laws therefore although they are not entituled as made in Parliament yet in the continuation of the History of Bede it is noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae which may give sufficient cause to suppose that he declined not the ancient way no more than he did the ancient Law. CHAP. XLVII Of the Franchise of the Church in the Normans time THE Canon-Law that ever since Austin's coming like Thunder rumbled in the Clouds now breaks forth with confusion to all opposers It had formerly made many fair proffers of service to this Island but it was disaccepted as too stately to serve yet by often courtesies received it was allowed as a Friend afar off For the vast body of the Roman Empire like a body wasting with age died upward and left the Britains to their own Laws before the second Beast was grown which being young was nourished under the Imperial Law of the first Beast till it grew as strong as its Dam and began to prey for it self The Empire perceiving its grey hairs and the youthful courage of this Upstart was glad to enter mutual League with it That to maintain the Ecclesiastical Monarchy and This again to support the Imperial and so became the Canon and Imperial Law to be united and the Professours to be utriusque juris But this parity continued not long the young Beast looked like a Lamb but spake like a Lion and contrarily the Eagle had cast its Feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon-Law above the Imperial yet allowing it to serve the turn And so the Professours of both Laws became Students in the Civil but Practisers of the Canon This Composition thus made beyond the Seas the great work was how to transport it over into this Isle for the Emperour could entitle the Pope to no power here because none he had Austin the Monk undertakes the work he offers it to the Britains under the goodly Title of Universal Bishop but they kept themselves out of Canon-shot The Saxons allowed the Title but liked not the power the Monk observed the stop and left time to work out that which present cunning could not being content for the present that a League of Cohabitation should be made between the two Swords though the spiritual were for the present underling not despairing that it would work out its own way over the Saxon Law as it had done over the Imperial Nor did his conceit altogether fail for the Saxons by little allowed much and the Danes more although the main was preserved until the Normans came upon the Stage who made their way by the Pope's lieve and gave him a colour of somewhat more than ever any of their Saxon predecessors had done and to gain the more quiet possession of the Crown to themselves allowed the Pope the honour of their Council learned to draw the Conveyance which as some think was made advantageously for the Pope himself in point of tenure but more probably in the Covenants For the Conquerour was scarce setled in his seat but the Canon-Law began to speak in the voice of a Royal Law First complaining of misgovernment as if the Church were extremely wronged by having the same way and Law of Tryal with the Commons of England and then propounds four several Expedients enough to have undone the whole Commonwealth in the very entrance had not the superstition of those times blinded both Parliament and People and rendred them willing to that which their successours in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon Law Church-matters had the preheminence both in the Hundred and in the County and it was the Bishop's duty to joyn with the Sheriff in those Courts to direct and see to the administration of Justice and yet the Canon had been above three hundred years foregoing in the Negative No Case concerning the Regiment of Souls shall be brought before the Secular Judge The Regiment of Souls was a common place sufficient to contain any thing that was in order thereunto and so every one that hath a Soul must be no more responsible unto the temporal Judge for any matter concerning it but unto the Ecclesiastical power And this not onely in case of scandal as against the moral Law or rule of Faith but for disobedience done to the Canons made afar off concerning any gesture or garb that may come within the savour of an Ecclesiastical conceit That all Delinquents against the Bishops Laws shall answer the Fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute-Law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the tryal of such matters shall be according to the Law of the Canon and not according to that of the Hundred That is not by Jury but by Witnesses in a clandestine way if the Bishop please or without any Accuser or by more scrutiny or any other way that may reserve the Lay-man to the breast of a prepossessed spirit of the spiritual Judge And thus the poor Country-man is exposed to the censure of an unknown Law in an unknown Tongue by an unknown way wherein they had no footing but by an implicit Faith. And herein the providence of God I imagine was more manifest than the wisdom of Man which was too weak to foresee events at so great a distance for questionless it was a point of excellent wisdom for the people now under a King of a rugged nature that would not stick to catch whatsoever he could get to deposit part of their Liberties into
are not of the Legiance of the King of England but as Lord of that Territory The other matter to be observed concerning pleading in the Courts of Civil Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman Tongue they shall be henceforth in English out of an inconvenience I believe rather supposed than felt For though some kind of knowledge of Law-terms may be encreased thereby yet unless that shall be professedly studied it will breed nothing but Notions and they an over-weening conceit which many times sets men to Suits in Law to their own loss like some weak influence of the Celestial Bodies that are strong enough to stir up humours but not to expel them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgal CHAP. XI Of the Militia in these times WAR is ever terrible but if just and well governed Majestical the one may excite resistance and defence but the other conquers before blow given because it convinceth the Judgment and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at War with its own understanding nor can such a heart consider such a War otherwise than as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessful It is no strange thing for Kings to miscarry in their Wars because it is rarely seen that they are under good Counsel but if a Christian Counsel miscarry we may conclude it extraordinary in the efficient cause and no less wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of honour but of safety and continuance to settle fundamental Laws of War against time of War as of Peace in time of Peace Neither was England deficient herein saving that antient times were more obscure in the particulars and these days revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation For being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he nevertheless received the same submitting both it and himself to the Directory of the Parliament in making a War with France which was three to one against him in very respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his Rear The like may be observed of his War with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Foreign War without the concurrence of the common consent of the People and that not onely for the thing it self but also for his own Personal Engagement in the Service For a King though he be the Generalissimo yet is he so from the People and his Person being of that high value is not to be exposed to every occasion that may provoke War without due advice first had with the publick Council because in his Person the People adventureth as well as himself And in this manner were the Wars in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the Arrays of Men for War I find no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and Obligati ad arma could do little either in the calling of men forth or arming them for the War. But in case of publick defence against Foreigners men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such Obligations by writing called in and damned as dishonourable to the King. In foreign service the course was no less regular if the War was by special direction of the Parliament they likewise ordered the manner of the raising of Souldiers viz. so many out of a County and so many out of a Burrough all which are by the express words of the Statute said to be granted by the Knights and Burgesses But if it was onely upon the King 's particular instigation and not by order or consent of the Parliament the King in such case being Voluntier all the Souldiers were in like manner unless some particular Law or Tenure otherwise obliged them As touching the arming of Souldiers the Law was yet more certain and particular If the Souldiers were men of Estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by virtue of their Tenures The first of these is confirmed by Edward the Third in Parliament wherein he willeth that no man shall be urged to arm himself otherwise than he was wont in the times of his Ancestors Kings of England The two latter were likewise confirmed by another Law made in the same Kings time whereby it was ordained That no Man shall be constrained to find Men of Arms Hoblers nor Archers other than those which hold by such services if it be not by common consent and grant made in Parliament By Men of Arms meaning those which we now call Curiassieres or compleat armed by Hoblers meaning those now called light Horse-men The Archers served on Foot and were principally armed with Bows although they had also Swords or other such offensive portable Weapons The first of these concerneth onely the arming of a man 's own person the other the finding of Souldiers and arming of them and both together sufficient for the safeguard of the Rights and Liberties of the People invaded in those times by Commissions of Array and such other expressions of Prerogative Royal for as touching the arming of a man 's own person the Statute of 1 Edward 3. formerly mentioned is clear in the point And though the Statute of 25 Edward 3. doth not in the latter direct as touching the finding Arms for others as is urged in his Majesty's Answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleat Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private person in such cases to command him to the service it seemeth clear to me that the Statute must intend the arming of him with compleat Arms and not the armed person of the man. The Souldiery thus arrayed they are in the next place to be called to their Rendezvouz the Knights by Summons sent to the Sheriff but the rest by Proclamation If the Knights appear
from without and in all good ends from above And therefore as a Seal to all the rest it was wisely done by the Parliament to draw the mindes of the Privy Council together and to present them joyntly before God by an Oath obliging themselves to a solemn and constant observance of their instructions and to perievere therein For the unchangeable God can onely stamp a lasting Image upon the mind and bind the same that is so subject to change to an unchangeable Law whereby the people may be made as happy for continuance as for Righteousness and Peace The Privy Council thus setled dressed and girt becomes of high esteem both for Trust and honourable Employment in great matters The Mint is the very Liver of the Nation and was wont to be the chief care of the Parliament it self in all the dimensions thereof Now the Mint is two ways considered viz. either in the value of the Metal and Money or in the Coinage The first of these and things most immediately concurring therewith the Parliament still retains to its own immediate Survey such as are the inhibiting of exportation of Gold and Silver and of melting of Coyn into Plate or Bullion the regulating of the current of Foreign Coyn the reducing of money both Foreign and Domestick imbased by Counterfacture Clipping Washing c. the regulating of Allay of Gold and Silver the regulating Exchange and such like concerning all which the Reader may please to peruse the Statutes 2 H. 4. cap. 5 6 11 13. 4 H. 4. cap. 16. 3 H. 5. Stat 1. 4. cap. 6. 9. cap. 11. and 2 H. 6. cap. 6. The second Consideration touching the Mint concerned the election and government of the Officers touching the Mint and Exchange or the places where they shall be holden which with some other matters of inferiour nature were left to the Order of the Privy Council either with the King or alone in case of the King's absence or disability A second power given to the Privy Council was in point of Trade and Merchandize Formerly they had somewhat to do therein but still the Parliament set out their bounds In Richard the Second's time the people had liberty of Trade in some Commodities by way of Exportation but the Privy Council might restrain them upon inconvenience to the publick Now the same is confirmed and though it concerned Corn onely yet it was a Precedent that led the way to a much larger power in the Trade of the Staple Commodities of this Island to enlarge or straiten it as they though meet And so they became in a fair way to have a principal power over the Revenues and Riches of this Nation But this lasted not long for within ten years these Licenses of Transportation cost the Merchant so much as he could make little gains of all his care and pains and therefore a rule is set to a general allowance of all Transportation of Corn till the price of Wheat came to a Noble and Barley at Three shillings and no longer This being first made Temporary was afterwards made Perpetual and so gave a restraint unto the power of the King and Council But where no positive restraint was made by any Statute the King and Council seemed to have the sole power left unto them to open and shut the passes of Trade as they pleased For whereas the Commodity of Butter and Cheese was made Staple the King and Council had power to stop the sale thereof notwithstanding that the Law gave full liberty to the Subjects to bring all their Staple-Commodities to the Staple Nevertheless this power in the King is not primitive but derived from the Parliament for they had power over the Kings Licenses and Restraints in such cases as by the several Statutes do appear A third power given to the Privy Council was a power of Summons and Process against Delinquents in cases of Riots Extortions Oppressions and grievous Offences The Summons to be by Privy-Seal the Process Proclamations and for Non-appearance Forfeiture if the Delinquent be of the degree of a Lord if of inferiour rank then a Fine or Out-lawry At the first view the Statute hath an ill favoured Aspect as if it raised up a new Court of Judicature but the time is to be considered with the occasion for it was made for the securing of the peace in a turbulent time And besides the Law carrieth along with it two restrictions which puts the right of Cognizance in the Privy Council to the question First It saveth the Jurisdiction of other Courts and provideth further That no matter determinable by the Law of this Realm shall be by this Act determined in other form than after the course of the same Law in the Kings Court having determination of the same which implieth that some kinds of Riots and Extortions are of so high a nature that though determinable in the Kingsâ—Court yet are they to be determined before the Lords In the next place this Law provideth That such offences as are determinable by the Law of the Realm that is by Jury shall still be so tried Secondly If Conviction be upon Confession or by Certificate in case where by reason of parties and partakings Inquisition by Jury cannot be had there the Lords shall immediately determine the same Lastly If the Certificate be traversed then the same shall be tried in the King 's Bench. But there is another Restriction that undoeth all in effect in point of right because what this Law setleth therein it setleth but for seven years and leaveth the Privy Council to the limits of the Common Law for the future In the mean time the Privy Council may be thought terrible and very high both by this Law and the greatness of the Lords Kings Unkles and Kings Brothers are Subjects indeed but of so high a degree that if a little goodness of nature or publick spirit shine in them they soon become the Objects of admiration from the Vulgar and gain more from them by their vicinity than the King can do at a distance For the Commons of England by the fair demeanour of popular great men are soon won out of their very Cloaths and are never more in danger to part with their Liberties than when the Heaven is fair above their heads and the Nobility serve the King and flatter them Nevertheless as I said the season must also be considered of this power thus by this Law contracted for what the Lords gained not by their popularity the Queen did with her power who now mindful of her contemned beauty and opposition from the Duke of Gloucester against her Marriage removes him out of the way gets the reins of Government into her hand and like a Woman drives on in full career The Duke of York and other Lords not liking this gallop endeavour to stop her pace but are all over-born the Duke taken prisoner and doubtless had pledged the
that Prince that will keep Guards about his Person in the midst of his own people may as well double them into the pitch of an Army whensoever he pleases to be fearful and so turn the Royal power of Law into force of Arms. But it was the French fashion and the King 's good hope to have all taken in the best sence His Title setting aside the saying of Philip the Hardy That Kingdoms onely belong to them that can get them would hardly endure the touch till Pope Innocent by his Bull confirmed the Crown to him to hold by a six-fold right Viz. Of Inheritance of War of Espousals of Election of Gift by Parliament and lastly of Pontifical Benediction which the King liked marvelous well and the rather because his Title by Marriage was buried up in the middle and so made the less noise For though it was his best guard yet he liked not that it should be so reputed lest his Title should seem rather conferred upon him than gained by him and so should hold by a Woman or at the best by the courtesie of England if the Peoples favour should so far extend the Law in that point by both which he holds the honour of a compleat King diminished His Title by Inheritance is much disputable if the right Heirs of John of Gaunt be enquired after And much more that of War for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistered over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontifical Benediction himself took that but as a redundancy that might sway with the Clergie and do his Title no hurt Nevertheless what severally they cannot do by joynt concurrence he accounts so fully done as if he were a King against all the World and more Yet is he not sure enough but as one jealous is more tender so is his eye ever upon his Title there is his guard and regard as if it were the outworks of his Crown which once lost the Crown cannot hold out long In this work he minded so much his Greatness that he lost the repute of his Goodness Then casting his eye upon the Government and finding it of a mixt temper wherein if Royalty prevails not Popularity will like a good Souldier whilst his strength is full he sallies upon the peoples liberties in regard of their persons with such cunning conveyance as he taught the People to dance more often and better to the tune of Prerogative and Allegiance than all his Predecessors had done Nor did the People perceive it till they were over their Shoes and then they clearly saw their condition and that it was in vain for them to wrangle with their own acts of which more particularly in the next Chapter The Legiance of persons of the People once gained their Estates more easily follow And therefore though in the former he wrought by Ambuscado in this he may be more brave and charge them in the Van. Yet this he did also by degrees first by light skirmishes of borrowing smaller sums of money possibly when he had no need and paying them again thereby to gain credit for greater sums of which he intended not so sudden return Then he charges them home with Benevolences a trick gained in right of his Wife from her Father for he hoped that the person of Richard the Third was now become so abominable as his Laws would be the less regarded But in this course he gained nothing but Wind. Then as Edward the Fourth he falls upon Malevolences of Penal Laws things made in terrorem to scare men to obedience rather than to compel them but are now executed Ad angorem and the people find that he is but a word and a blow with them and thus serving his Prerogative with Power and his Purse with his Prerogative he made all serve his own turn Humanitatem omnem vincente periculo In the Field he always put his Wisdom in the Van for as he was parsimonious in expences of Money so much rather of Bloud if he could prevail by Wit. Generally he was the first in Arms to make men believe he was more ready to fight than they Thus he many times gained the advantage of his Adversaries and sometimes came off without blows In the Battle he did put on courage as he did his Armour and would dare to adventure just as far as a General should as if he had ever regard of his Crown rather than of the honour of a forward Souldier which nevertheless was also so dear to him as he is seldom found in the Rear although his Judgement commanded in chief rather than his Courage In the Throne he is much more wise because he was willing it should be known In doing Justice he is seldom suspected unless where himself is party and yet then he is also so shame-faced as he would ever either stalk behind some Law that had a semblance to his ends or when he meant to step out of the way he would put his Ministers before not so much that his fineness might be known but his Royalty For the Lion hunts not its own prey nor is it Regal for a King to be seen in catching of Money though he be understood Besides it was needless he had Lords Bishops Judges and other instruments of malevolent aspects as so many Furies outwardly resembling men for the Commonwealth but working for the common mischief like some Pictures one way looking right and another way looking wrong And thus the King comes lawfully by what he catched though his instruments did not and must be still holden for a good King though it be his hard hap to have ill servants Take him now amongst the people he is alike to all yea in some things that might seem to brush upon the King 's own train for he had some of his suit that were not altogether of his mind and these he would spare to the course of Justice if need were As it befel in the case of the Duke of Suffolk whom he suffered to be tried at the Kings Bench-bar for a Murder done upon a mean person and by such means obtained the repute of a zealous Justiciar as if Justice had been his principal vertue All this suited well with his main end for he that will milk his Cattle must feed them well and it encourages men to gather and lay up when they have Law to hold by what they have His Religion I touch upon in the last place as most proper to his temper for it was the last in his thought though many times the first in the acting But where it stood in his way he turned it behind him he made Church-men his instruments that the matter might better relish for who will expect ought save well from men of Religion and then if the worst come he was but misled by such as in common reason ought
which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I mean a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Council whose names hereafter follow with such penalties as by them shall be thought meet shall be of equal force by an Act of Parliament provided it shall not extend to the forfeiture of Estates or Priviledges nor to loss of Life but in cases particularly mentioned in the Law Provided no Proclamation shall cross any Statute or lawful or laudable Custom of this Realm All which at length comes to be demanded by a formal Bill with as ill-favoured a Preface as the matter it self which was much worse e're it was well liked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner abovesaid neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For instead of a Legislative power which he grasped at for himself he received it in common with his Council and so becomes engaged neither to alter nor destroy that Brotherhood if he intended to reap any fruit of this Law leaving the point in doubt whether his Gain or Loss was the greater For this Law thus made for this King these Counsellors and these times and occasions can be no Precedent to the future unless to inform Kings that the Parliament hath a power to give more Authority and Prerogative to Kings than they or the Crown have by common Right and to give it with such limitations and qualifications as seemeth good to them And secondly That even Henry the Eighth acknowledged that the Legislative power was not in the Crown nor was the Crown capable thereof otherwise than it was conferred by the Parliament Onely Steven Gardiner might glory in this Atchievement having for the present obtained much of his ends by perswading the King that Forein Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintain And therefore if he meaned to gain better correspondency amongst these Princes he must engage more resolvedly to the Fundamentals of the Worship though he shook off some slighter Ceremonies with the Romish Supremacy for he knew that they were willing enough with the latter though the other could not go down with them Thus did Forein Correspondency float above whenas the Church as then it stood was underneath and gave the tincture to every Wave And it was holden more safe by the Romish party to trust the King thus attempered with the Legislative power in the Church-matters than the rough Parliament whose course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the chief Officers of State and of the Houshold were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King onely was of the Quorum All this yet further appears in the penalty for by a Proviso it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended onely to Fine and Imprisonment unless in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first Clause of any positive Law that ever intimated any power in the King of such Cognizance and punishment of Heresie Too weak a principle it is to settle a Prerogative in the King and his Successors as Supream Head of the Church thus by a side-wind to carry the Keys of Life and Death at their Girdle and yet a better ground cannot I find for the Martyrdom of divers brave Christians in those times than this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 38 H. 8. c. 26. formerly mentioned to come more boldly upon the Stage This was one wound to the Legislative power of the Parliament thus to divide the same Another ensues that in its consequences was no less fatal to that power which remained and it was wrought by some Engine that well saw that the Disease then so called grew to be epidemical amongst the more considerable party in the Kingdom that the Lady Jane Seymor now Queen was no friend to the Romanists that she was now with Child which if a Son as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undo all as in the issue all came so to pass To prevent this nevertheless they fancy a new conceit that Laws made by English Kings in their minority are less considerately done than being made in riper years And so by that one opinion countenanced a worse which was that the Legislative Power depended more upon the judgement of the King than the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an all-sufficient Prince as Henry the Eighth conceived himself to be Upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of Twenty and four years when Laws by him are made to adnul the same by Letters-patents after such Prince shall attain the said age of Twenty four years Thus the Arms of the Parliament are bound from setling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more fair The Parliament was now in its minority and gives occasion to the Reader to bewail the infirmities of the excellencie of England A fourth advance of Prerogative concerned the Executive Power in Government of the Church This had formerly much rested in the Prelacy and that upon the chief Praelatissimo at Rome now there is found in England a greater Prelate than he the Pope was already beheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Archbishops within his Dominions by Conge d'eslire and that the party once elected shall swear Fealty and then shall be consecrated by Commission and invested but if upon the Conge d'eslire no Election be certified within Twelve days the King shall by Commission cause his own Clerk to be consecrated and Invested The occasion that first brought in this President was the access of Cranmer to the See at Canterbury for though the Headship had been already by the space of Two years translated from Rome to England yet the course of Episcopizing continued the same as formerly it had been I mean as touching the point of Election For though
are ready to give and pay to him and to every Christian continually Besides we are under the government of the Bishop of Caerleon upon Uske who is to oversee under God over us and cause us to keep the way spiritual This was the Britons resolution and they were as good as their word for they maintained the liberty of their Church five hundred years after this time and were the last of all the Churches of Europe that gave their power to the Roman beast and Henry the Eighth that came of that blood by Teuther the first that took away that power again Austin having met with this affront and perceiving that the Britons were stronger in their Faith than he by his Miracles cast about to try the Saxons courtesie that what the Ephod could not the Sword wrapt up therein should I say not that he procured but he threatned or prophesied the destruction of the Monks of Bangor and it came to pass and the accasion by writers loudly suspected Nevertheless the Saxons were not so zealous of their new Religion as to make a new National quarrel between the Britons and themselves but left the game to be played out by Austin who finding by experience that it would not prove the work of one man left it to successors to work out by degrees in efflux of time And thus Austin neither good Servant to the Servant of Servants nor good Monk retires to settle his Saxon province and to present or rather to prostitute it to the lusts of that red Whore which was the general piety of those ignorant times CHAP. VI. Of the Imbodying of Prelacy into the Government of this Kingdom I Cannot think that the platform of the mystery of iniquity when boiled to the height was ever fore-seen or in the aim of the wicked spirits on Earth or those in Hell. Yet were they all instruments of this monstrous birth filled with subtilty and mischief guided principally by occasion and over-ruled by the Justice and Wisdom of God to make a yoke for Monarchs and a scourge to the world for their refusal of the government of Christ until this Monster came to perfection and wherein themselves were feloes de se and wrought their own mischief For Austin coming in as a third Proprietor with King and People and having gathered the materials of a Church reason told them that a form of government must be setled in that Church The Saxons had no principles of their own for they had no learning and to go to the Britons for a pattern might be ignoble and where the choice is small it is soon made Rome held now the most part of the Churches of Europe at School the Saxons soon resolve Rome that had been their Mother shall be also their Father And thus at one draught they drank up a Potion of the whole Hierarchy of Rome from the Pope to the Apparator with a quicquid imponitur imponetur which was of such lasting efficacy that it ceaseth not to work even to this day although it was slow in the first operation For the Saxons had a Common-wealth founded in the liberty of the people and it was a masterpiece for Austin and the Clergy so to work as to remain members of this Common-wealth and yet retain their hearts for Rome which was now grown almost to the pitch of that Antichrist For reason must needs tell them that the Saxon principles would not suffer them to be ad omnia for Rome nor the Roman Canon allow them to be wholly Saxon and they faw plainly that the times were too tender to endure them to be declarative on either part and therefore they chose a third way which was to preserve the municipal Laws in moderation towards the Canon and to that end to endeavour such a temper upon the State as must admit them to be in repute such as without whom the Common-wealth could not well subsist no more than a body without a soul and that few occasions should befal but at least in ordine remoto must reflect upon both and then all reason will bespeak them to joyn in the legislative power and government of this Kingdom but especially as Bishops who are now Magnae spes altera Romae and the very top-flowers of wisdom and learning And unto this temper the Saxons were sufficiently prepared and inclinable for it was no new thing for them to admit their Heathenish Priests into their general meetings and allow them much power therein and then it is but the person changed and they must do as much for their Bishops now they are become Christian especially themselves being all for the field and overgrown with a general ignorance the common disease of those times Kings were in no better condition it was hard for them to be Baptized and not to be Baptized into Rome and commonly under such a Covenant as though many might repent of yet none durst amend For whenas the Pope is Lord of the Consciences of the people the Kings power may sometimes out-face but can never govern the Saxon Kings were therefore fain to make a vertue of necessity and advance Bishops to be common favorites both of Rome and themselves to maintain good correspondency between both Swords and to countenance the power of the temporal Magistrate in cases of dispute else he oftentimes might command and yet go without Thus entred the Prelates upon affairs of Kings and Kingdoms and became lovers of Lordships and troublers of States and if in any thing they served their Country they served Rome much more their merchandise was made of the policies and Counsels of all Kingdoms and States and such returns proceeded as were still subservient to the Roman interest and they intoxicated the domestick counsels in such manner as they generally staggered and many times came short of home Nevertheless at the first this was but rare clancular and covered with much modesty for excepting such choice spirits as Austin had Roman Prelacy in these younger times was but Velvet-headed and endured not much greatness or big titles but spake like a Lamb Ego non verbis quaero prosperari sed moribus said this Gregory to the Alexandrian Bishop who had put upon him the title of Universal Bishop or Pope and whereas he had in a way of Courtship called Gregories Counsels commands he startles at it quod verbum jussionis saith he peto a meo auditu removeri quia scio quis sum qui estis Thus Prelacy first conveyed it self into opinion afterwards into conscience and ambition coming in the rear made it become both Bishop and Lord. CHAP. VII Of Metropolitans in the Saxons time BEing in pursuit of the Government of this Kingdom in elder times and therein first of the persons with their relation then of their work and lastly of their Courts and Laws and now in hand with the Ecclesiastical persons I shall descend to their particular ranks or degrees and shall shew what
they were in their original and what overplus they had by Laws And first concerning the Metropolitan In his original his Office was to visit the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reform and in all things to proceed according to the prescript Canon Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practice of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swoln beyond the girt of the Canon and before that England waâ— honoured with that rank of men Metropolitans were become Metronoâ—â—ians and above all rule but that of their own will and through common custom had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the dignity or title which you will was a plant of that virulent nature that would scarce keep under-ground in the time of the hottest persecution For Steven Bishop of Rome liked the title of Universal Bishop And after a little peace it 's a wonder how it grew to that height that it had and no less wonderful that the Saxons gave entertainment to such Potentates Much of whose spirits they might have observed in the entrance of their first Archbishop Austin if God had not given them over to thraldom under the mystery of iniquity of sinful man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godliness God manifested in the flesh as it was taught in simplicity by the rural Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue run thus It belongs to the Metropolian Bishop to rule Gods Churches to govern chuse appoint confirm and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to do And thus though the apparent power of Archbishops was great and unlimited yet what more was wrapped up in that word Churches only time must declare for it is very likely that in those daies it was not understood yet the practice doth not obscurely declare the matter for before this Law was established by Withered in a Council wherein Bertnaldus Archbishop of Canterbury was president and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining or removing them as a Writer saith that his rule was no other than perturbatio and impetus animi But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdoms in this Island and Kings had no further power than their limits afforded them But there was but one Metropolitan for a long time in all the Saxon Territories so as his power was in spirituals over many Kingdoms and so he became indeed Alterius orbis Papa And it was a remarkable testimony of Gods special providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman Chair that they had not torn the European Church into as many Popedoms as Provinces But no doubt God ordered it for a Scourge to the World that Antichrist should be but one that he might be the more absolute Tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their Rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it self and it had been contrary to Austin's principles to have advanced to Bishopricks men better qualified than himself They first ruled the Saxon Church joyntly in the nature of a Presbytery till about Sixty years after Austin's time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder than all and thereupon Theodore Archbishop of Canterbury first divided his Province into Five Diocesses and by appointment of the Kings and People placed Bishops over each every one of them being of the right Roman stamp as himself was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of Three hundred years degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their original condition of meekness and humility But it is a much greater wonder that they should become so purely ambitious as not to endure a thought of the ways of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct teach to see the service of God to be diligently purely administred in publick Congregations to Exhort Reprove by teaching to amend such matters as he should find in life and Doctrine contrary to Religion and accordingly they carried themselves meekly and humbly studying peace truth and medled not with Secular Affairs they are now grown up into State and must now ride on horse-back that were wont to go on foot Preaching the Word and must be respected above the rank of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden Sacred as the word of a King sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerks and Religious houses must stoop under their power their sentence must be definitive and thus advanced they must keep state viz. not go too far to meet Princes in their approach towards them nor to light off their Horses backs to do Princes Reverence at their meeting because they are equal to Princes and Emperours and if any Bishop shall behave himself otherwise and after the old rustical fashion for such are the words of the Canon for disgrace done to their Dignity they must be suspended So as by their own confession Bishops henceforth are Bishops of a new fashion that must incur a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully let him peruse the Canon if he please But this is not sublime enough they must be not only equal but in many respects superiour to Princes for in matters that concern God Omnibus dignitatibus praesunt and more plainly Princes must obey them Ex corde cum magna humilitate and this was
liberty of the Laws Nor was it to be expected that the Saxons would endure a King above this pitch For those parts of Germany whence they came that had the Regiment of Kings which these had not yet used they their Kings in no other manner than as Servants of State in sending them as Embassadors and Captains as if they claimed more interest in him than he in them And the Historian saith expresly that amongst those people in Germany that had Kings their Kings had a defined power and were not supra libertatem And this Maxim of State became afterwards priviledged by Sanctuary for by the growth of Antichrist not only the Clergy but even their Tenants and Retainers were exempt from the reach of Kings and even by their own concession allowed of a Law that cut the throat of their indefined prerogative viz. That if the King defend not his people and especially Church-men from injury nec nomen Regis in eo constabit verum nomen Regis perdit Which Law however it might pass for currant Divinity in those days yet 't is strange it should get into a publick Act of State. Nor was this a dead word for the people had formerly a trick of deposing their Kings when they saw him peep above the ordinary reach and this was an easie work for them to do where ever Neighbouring Princes of their own Nation watched for the windfals of Crowns This made the Monarchical Crown in this Land to walk circuit into all parts of the Countrey to find heads fit to wear it until the Norman times Thirdly the Saxons had so hampered their Kings in their Elections and made them so properly their own as they claimed an interest not only in the person of their Kings but also in their Estates so as in some respects they were scarcely sui juris For King Baldred had given the Mannor of Malings in Sussex to Christ-church in Canterbury and because the Lords consented not thereto it was revoked and King Egbert afterwards made a new grant by advice of the Lords which shews that the Demesnes of the Crown were holden sacred and not to be disposed of to any other use though pious without the consent of the Lords and herewith concur all the Saxon infeodations attested and confirmed by Bishops Abbots Dukes and others of the Nobility under their several hands Nevertheless Kings were not then like unto plumed Eagles exposed to the charity of the Fowls for food but had a Royal maintenance suitable to their Majesty Their power was double one as a Captain another as a King the first was first and made way for the second As Captain their power was to lead the Army punish according to Demerits and according to Laws and reward according to Discretion As Captain they had by ancient custom the spoil left to their ordering by permission of the Army Exigunt Principis liberalitate illum Bellatorem equum illam cruentam victricem frameam and they were not wont in such cases to be close handed per bella raptus munificentiae materia the spoils in these wasted parts of Germany bring little other than Horses and Arms. But after they came into Britain the change of Soil made them more fat Horses and Arms were turned into Towns Houses Lands and Cattle and these were distributed as spoils amongst the Saxon Souldiers by their Generals and this redounded to the maintenance of the State and port of the great men who were wont to be honoured non stipendiis sed muneribus and the people used ultro viritim conferre principibus vel armentorum vel frugum aliquid But now upon the distribution of conquered Towns Houses Lands and Cattle in Britain a yearly product of Victuals or other service was reserved and allowed to the Saxon Kings by the people as the people allowed to Joshua his Land Jos. 19. 46. So as they needed no longer the former course of Offerings but had enough to maintain their Royal port and great superfluity of Demesnes besides as their charity to the Church-men does sufficiently evidence And by this means all the Lands in England became mediately or immediately holden of the Crown and a setled maintenance annexed to the same besides the casual profits upon emergencies or perquisites of Felons or Fugitives goods mines of Gold and Silver Treasure trove Mulcts for offences and other priviledges which being originally in the Kings were by them granted and made Royalties in the hands of Subjects as at this day To the increase of his Majesty and maintenance there was an access of power not to make dispense with or alter Laws but to execute and act the Laws established and against this power there was no rising up so long as it like an unfeathered Arrow gadded not at random It 's true the Church-men or Prelates checked them often but could never give them the mate For peace sake Kings many times yielded much yet would no King of Saxon principles allow of any Canon that extolled the Clergy's Authority above that of Kings And though the placing and displacing of Bishops seemed to be all Ecclesiastical work yet would not the Kings altogether connive as the examples of Ina in placing a Bishop in Wells Offa in making two Provinces of one Cenulphus in restoring Polydorus Edfrid in deposing Wilfrid and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion and for their own safety sake the Prelates thought it wisdom for them sometimes to stoop to that power that at other times they must be beholding to And therefore though in Synodical disputes they would hold with the Canon yet in matters of Action would suit with the occasion and thereby taught Princes to account of Canons but as Notions and politickly to put the honour of Commissioners upon these men Thus the current of both powers passing in one channel made the people drink double Beer at once the turns both of Pope and King were competently served and these men had the honour of the two-handed Sword and all seemed composed into a fair compromise But the Popedom finding its Authority becalmed endured this but as a burthen till Pope Nicholas the second 's time who by the like trick commended all to the Crown as from the Papal Benediction For Edward the Confessour upon his foundation of the Abbey of Westminster sent to the Pope for his allowance and confirmation of what he had done or was to do and to make way for the more favour sent presents and a confirmation of Romescot The Pope was so inflamed with such an abundant measure of blessing as he not onely granted the Kings desire but also discharged that Abbey from ordinary jurisdiction made it a peculiar subject onely to the Kings visitation and concluded his Bull with this Horn Vobis vero posteris vestris regibus committimus advocationem tuitionem ejusdem loci omnium
totius Angliae Ecclesiarum vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I find not but he could never make better use than by way of estoppel unless he meaned to sacrifice his own right as a thank-offering to a shadow which I find not that he or his next Successors ever did But as touching the Laity Histories do not touch upon any conceit of withdrawing Monarchical power It 's true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter or by the Princes fair compliance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude a Saxon King was no other than a primum mobile set in a regular motion by Laws established by the whole body of the Kingdom CHAP XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in War and in Peace That rank of men was continued by three means viz. by Birth or Blood by Valour and by Wisdom The first was rather at the first a stem arising out of the first two than a different degree or kind for Noble blood was at the first enobled by brave actions afterward continued in their honour to their Posterity till by as base courses it was lost as it was gained by worthy Atchievements these were called Adelingi The Nobility of Action consisted either in matters of War or of Peace Those of Peace arose principally from Wisdom which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of War arose somewhat from valour or courage with wisdom but more from good success for many brave and fortunate Commanders have not been very daring and the bravest spirits though wise have not been ever honoured with good success these were called Heretochii Nevertheless all these names or titles were used promiscuously in following times and all called Nobiles But both that and Duces Satrape and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this honourable Band viz. The great Officers of the Kings Houshold and their attests are found amongst the Kings Charters amongst the Nobles and that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but Master of some may by a little courtesie prevail over all This starry Heaven had several Orbs some so high as in common esteem they were next the Imperial Heaven having a tincture of Royal Blood and at the next door to the Throne Others though not of so clear light had nevertheless no less powerful influence upon the people but rather more by how much more nigher to them Their power in matters of Peace or Government of the Commonwealth was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publick in convocating and directing the people De minoribus rebus consultant principes These minora are such as are subservient to the majora and pro hic nunc require suddain order touching any particular part or member of the Common-wealth At other times they visited their several Territories or Circuits hearing and determining matters of Controversie and executing Judgment according to the known Laws Principes jura per pagos vicosque reddunt Yet they had Comites of the Country joyned with them whereof afterward This was their course in German Saxony but in England the new stem of Kingly power arising higher than all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regal order and the Lords executed the same as Deputies from and under him designed thereto by Writs and Commissions as it is more particularly noted of King Alfred The Lords thus lessened in their judiciary power carried the less authority in their Votes and Consultations The King was a perpetual Moderator in that work and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it 's a hard thing for one that hath yielded his heart to admiration to keep it from adoration This hath mounted up Kings to the top more than their own ambition and made them undertake what they ought not because we esteem more highly of them than we ought I speak not against due but undue Obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion as they did many times and advised others to do the like Nor had Kings by degrees become beyond controul and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldness to set a Law upon the exorbitancy of their King as in that case of Aethelwolf and his Queen amongst others may appear but that was like some enterprizes that owe more to extremity of occasion than to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Freemen called anciently Frilingi or Free-born or such as are born free from all yoke of Arbitrary power and from all Law of compulsion other than what is made by his voluntary consent for all Freemen have votes in the making and executing of the general Laws of the Kingdom In the first they differed from the Gauls of whom it is noted that the Commons are never called to Council nor are much better than servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt And therefore those that were elected to that work were called Comites ex plebe and made one rank of Freemen for wisdom superiour to the rest Another degree of these were beholding to their Riches and were called Custodes Pagani an honourable title belonging to Military service and these were such as had obtained an estate of such value as that their ordinary Arms were a Helmet a Coat of Mail and a gilt Sword. The rest of the Freemen were contented with the name of Ceorles or Pagani viz. Rural Clowns who nevertheless were the most considerable party both in War and Peace and had as sure a title to their own liberties as the Custodes pagani or the Country Gentleman had CHAP. XIX Of the Villains amongst the Saxons THe most inferiour rank amongst the Saxons were those that of latter times were called Villains but those also antiently divided into two degrees the
the Ecclesiastical or Canonical way before this Lastly in their meeting as well at the Hundred as County-Court they retained their ancient way of coming Armed CHAP. XXVI Of the Division of the Hundreds into Decennaries THis was the last subdivision of the County and that rested upon the persons and it was either not at all or not so observable as to be worthy of the Roman story and therefore may rather be thought an extract from Moses Law introduced by Alfred or his direction I say this rested on the persons and not upon the place for though the Centeners were comprehended within certain bounds yet the Decenners were not limited but only within the limits of the Hundred And of these also it appeareth to me there were divers sorts for such matters of controversie that did arise amongst the Decenners if of greater moment were referred to the chiefer Justices which were appointed super decem decanes which I conceive were ten chief pledges and these might bear the names of the Centeners although they be not the Centgraven and the rather I incline thereto because in all probability there must needs be above one hundred Free-holders in Hundredo and all Free-men were Decenners that is ranked into several tens each one being pledge for others good abearing and in case of default to answer it before the Judge and in case of default of appearance his nine pledges should have one and thirty days to bring the Delinquent forth to justice If this failed then the chief of those Decenners by the votes of that and the Neighbour Decenners was to purge himself and his fellow-pledges both of the guilt of the fact and of being parties to the flight of the Delinquent And if they could not this do then were they by their own Oaths to acquit themselves and to bind themselves to bring the Delinquent to justice as soon as they could and in the mean time to pay the damage out of the Estate of the Delinquent and if that were not sufficient then out of their own Estate but if the Delinquents Estate was sufficient the surplussage thereof remained with the pledges And lastly the Master of the Family was a pledge for his whole Family This was the Law of Decenners and may seem to be somewhat a rigorous Law not only in case of Delinquency but also for their abode for none of them might depart from their dwelling without consent of his fellow-pledges nor out of the County without allowance of the Sheriff or other Governour of the same And if any controversie arose between the pledges the chief pledge by them chosen called also the Dean or Headburrough may determine the same but this held only in matters of lighter consequence CHAP. XXVII Of Francheses and first of the Church-Francheses WE have hitherto trod in the road-way of the Government of the Common-wealth but private regards have made by-paths which we must trace or else the footsteps in many particulars will remain unknown These are called Exemptions but more ordinarily Francheses from which scarce any part of the Kingdom remained free and are to be considered either in regard of the place or person In the latter I intend that of the Church-men whose Persons and Estates in many particulars were exempted from the civil power of this Kingdom Their persons devoted to a peculiar work they would have to be under a peculiar Law called the Canon-Law which at the first extended only to their own persons and that only pro reformatione morum for so an Archbishop tells us that it did teach quomodo Canonici id est regulares Clerici vivere debent but when it grew to its full charge it gave a louder report Quicunque aliquid tenuerit vel in fundo Ecclesiae mansionem habuerit extra curiam Ecclesiasticam non placitabit quamvis foris fecerit And thus as Church-ground increased by the blind charity of those times so long Church-men multiplied and the Canon inlarged from the persons of regulars to all Clergy-men and from them to their Tenants and Neighbours from thence to certain Spiritual or Ecclesiastical crimes or scandals wherever they were found and wherever it touched it took and bound by Excommunication and upon significavit being first delivered to Satan they delivered him over to the Sentence of the Law to be imprisoned If the offender be out of reach by the space of thirty and one days he is Outlawed so as there is no way left to escape the Church-fury CHAP. XXVIII Of the second Franchises called the Marches FRanchises of the place were such as were limited within precincts of place and annexed thereto and of this sort first were those of the borders of which those are the most ancient that bordered the Britons now called the Marches of Wales in which was a peculiar Government so far as concerned administration of justice for otherwise the subjects each of them submitted themselves to the service of their own Prince This was therefore a third different and mixt Government agreed upon joyntly between the Britons and Saxons who after a long and burdensome War wherein both peoples were well wearied by degrees became Friends entered Traffick and into the strictest Societies by Marriage Thus finding the sweetness of peace they provide against future occasions of strife that might arise in commerce by the justling of two Laws together and agree in one Law and upon a certain number of Judges elected by common consent who were to see to the execution of these Laws as joynt Assessors From these as I conceive arose those which are now called the Lords Marchers and were at the first twelve in number viz. six Saxons and six Britons It seemeth this form of Government was first instituted by Aetheldred and by way of prescription or custom continueth till this day and as it was the birth of truce so for the future became both Mother and Nurse of peace between those two peoples like the twi-light between the day and night until both were brought under one head and by divine providence setled in a lasting day CHAP. XXIX Of County-Palatines OF the same sort of Franchises were these which are called County-Palatines which were certain parcels of the Kingdom assigned to some particular person and their Successors with Royal power therein to execute all Laws established in nature of Province holden of the Imperial Crown and therefore the Kings Writ passed not within the precinct no more than in the Marches These were occasioned from the courage of the Inhabitants that stoutly defended their Liberties against the usurping power of those greater Kings that endeavoured to have the Dominion over the whole Heptarchy and not being easily overcome were admitted into composition of Tributaries and therefore are found very ancient for Alfred put one of his Judges to death for passing Sentence upon a Malefactor for an offence done in a place where the Kings Writ passed not and the same
Weapons No Defendant could refuse Battle offered but such as were too excellent as the King or too sacred as the Clergie or too weak as Women Maimed persons and Children or too inscient as Ideots and Lunaticks or too mean as Villains And as these were not necessitated to answer in Battle so was no Freeman compelled to answer them by Battle This way was an old way as may appear by the conclusion of Appeals and seemeth more satisfactory than that of Ordeale because this rested upon the Consciences both of Appellant and Defendant whereas Ordeale rested onely upon the single Conscience of the Defendant which oftentimes was rather hardy than innocent And the continuance of this trial in title even at this day shews that men can away with this and that there is not evil sufficient in it to eradicate this weed although it be kept under ground and experience shews that Right and Victory always do not concur CHAP. XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest THe last and most ordinary way of trial was by Witnesses upon traverse of the matter in Fact before the Jurors and their votes thereupon this made the Verdict and it determined the matter in fact In former time questionless it was a confused manner of trial by Votes of the whole multitude which made the Verdict hard to be discerned But time taught them better advice to bring the Voters to a certain number according to the Grecian way who determined controversies by the suffrages of Four and thirty or the Major part of them But how the number came to be reduced to Twelve I cannot conjecture unless in imitation of that rule of Compurgators that ordinarily exceeded not that number The first Law that defined this number was that of Aetheldred about three hundred years before the Conquest In singulis Centuriis c. In English thus In every Century or Hundred let there be a Court and let Twelve ancient Freemen together with the Lord of the Hundred be sworn that they will not condemn the Innocent nor acquit the Guilty And this was so strictly eyed that Alfred put one of his Judges to death for passing Sentence upon a Verdict corruptly obtained upon the votes of the Jurors whereof Three of the Twelve were in the Negative And the same King put another of his Judges to death for passing sentence of death upon an Ignoramus returned by the Jury And a third for condemning a man upon an Inquest taken ex officio whenas the Delinquent had not put himself upon their trial But the Saxons were more careful of the credit and life of man for no mans life or credit rested altogether upon the cast of Twelve opinions but first Twelve men enquired of the fame and ground thereof which if liked rendred the party under the spot of delinquency and meet to be looked upon as under the suspition of the Law who formerly was but under the suspition of some particular man. And then was a second enquiry of the fact if the party traversed the vote of Fame In both which trials the Verdict grounded it self upon those allegata and probata which were before them The first of these enquiries was before the Coroner who even in these old days had the view of Bloodshed The second was had before the Judge of life and death neither of which could legally indamage the party without the other unless the Judge meaned to answer it with the peril of his own person and Estate as it befel in Alfred's time when a Judge suffered death for passing Sentence upon the Coroners onely Record unto which a Replication is allowed as the Book saith And another Judge had the same measure for condemning one without Appeal or Indictment foregoing Where by the way I might note another difference between Appeals and Indictments in this that Appeals were and are the more speedy Trials than Indictments inasmuch as the former were but one act the latter two And yet time and experience refined this way of trial into a more excellent condition For the bloody times of the Saxons first age passing over and peace arising by degrees they together with the Britons began to intercommon and about the Marches became a mixt people under a mixture of Government and Laws as hath been already noted Amongst which one concerned their way of trial of matters in fact by a Jury mixt both of Britons and Saxons which was setled by a Law made by Aetheldred Viri sint c. In English thus Let there be Twelve men of understanding in the Law six of them English and six Welch and let them deal Justice both to English and Welch The equity of this Law in future ages spread it self into all Trials of Forreigners in every place throughout this Island Unto such as stumble at this conceit because they are said to be aetate superiores and jure consulti I shall onely note thus much That it is not to be doubted but the work of Jurors required chief men both for experience and knowledge in the customs of those times to enable them to judge of the matter in fact and upon whose judgement the Life and Death of the party rested principally And as probable it is that those Jurors as they were then chief men so they sate in the most eminent place of the Assembly or Court and were co assessors with the Bishop and Sheriff who did serve but onely to advise the rest and they or one of them to publish the Sentence which the Law predetermined And this chief place the Jurors might have possessed at this day as they do in Sweden had the chief men holden the service still worthy of their attendance But great men grew too great in their own esteem for the service of their Country betaking themselves to serve themselves and matters of highest employment were left to those of the meaner condition who being in their own persons of less admiration were thought unmeet to sit in such eminent places and so from the Bench descended to the Floor as at this day This disidiousness of the greater sort made one step further to the full perfection of that manner of Trial both of the Persons and Estates of the English which hath been the envy of other Nations and is called the trial per Pares or by Peers For the pride of the Danes now growing into one people with the Saxons not enduring such fellowship with the mean Saxon-freemen in this publick service and the wise Saxon King espying the danger in betrusting the Lives and Estates of the poorest sort unto the dictate of these superbient humours and on the contrary in prostituting the Nobler blood upon the vote of the inferiour rank of men provided a third way and by agreement between him and Gunthurne the Dane setled the Law of Peers Si minister regius c. If a Lord or a Baron be
accused of Homicide he shall be acquitted by Twelve Lords but if of inferiour rank he shall be acquitted by Eleven of his Equals and one Lord. Thus Gods providence disposed of the pride of men to be an instrument of its own restraint For the great men ere they were aware hereby lost one of the fairest Flowers of their Garland viz. the Judicature or rather the mastership of the Life or Death of the meaner sort and thereby a fair opportunity of containing them for ever under their awe And no less remarkable was the benefit that redounded to this Nation hereby for had the great men holden this power as once they had it it might soon have endangered the liberty of the Freemen and thereby been destructive to the Fundamental Constitution of the Government of this Realm which consisteth in the just and equal participation of these Priviledges wherein all are equally concerned This was the trial wherein the people of this Nation were made happy above all other people and whereby the Freemen as they had the Legislative power so likewise had the Juridical and thereby next under God an absolute dominion over themselves and their Estates For though this course of trial was first applied to matters of Crime yet it soon also seized upon the Common-pleas which for the most part was the work of main import in the Hundred Court and suitable hereunto are the prescriptions which are extant in the Law-books of Cognizance of Pleas and Writs of Assize c. from the times of the Saxons as in that case of the Abbot of Bury amongst others doth appear CHAP. XXXIX Of passing of Judgement and Execution AFter Verdict Judgement passed according to the letter of the Law or known Custom in criminal matters according to the greatness of the offence either for death or loss of Member But if the circumstances favoured the Delinquent he was admitted to redemption of Life or Member by Fine also setled by letter of the Law and not left to the Judges discretion If the Crime reached onely to shameful penance such as Pillory or Whipping the last whereof was inflicted onely upon Bondmen then might that Penance be reduced to a Ransom according to the grain of the offence assessed in the presence of the Judge by the Freemen and entred upon the Roll and the Estreat of each Ransom severally and apart sent to the Sheriff This Ransom was paid usually unto the King and Lord and the party indamaged or his friends if the case so required according to the old German rule Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus This course opened indeed a way for Mercy but through corruption a Floud-gate to Wickedness in the conclusion Of Imprisonment there was little use in the eldest times afterwards it was more used not onely to secure the person to come to trial of Law for miscarriages past but sometimes to secure men against committing of future mischief especially if it more concerned the publick I find but little or no use thereof barely as a punishment nor would their Ancestors so punish their Bondmen Vinculis coercere rarum est In case of Debt or Damage the recovery thereof was in nature of elegit for the party wronged either had the offenders goods to him delivered or the value in money upon sale of the goods made by the Sheriff and if that satisfied not then the moity of the Lands was extended and so by moities so far as was possible salvo contenemento and when all was gone the Defendants Arms which were accounted as the Nether-milstone or stock of maintenance were last of all seized and then the party was accounted undone and cast upon the charity of his friends for his sustenance but the person of the man was never imprisoned as a pledge for the debt no not in the Kings case Alfred imprisoned one of his Judges for imprisoning a man in that case One punishment of death they had in cases of crime and that was by hanging or strangling and where the crime was not so great sometimes ensued loss of member or mutilation and in many such cases Excommunication pronounced indeed by the Clergy but determined by the Law which in the first conception was framed in the womb of the Legislative power in Parliament as may appear in many Laws there made nor was there in those times any question made of the cognizance thereof so long as the Clergy and Laity had charity enough to joyn in all publick Councils CHAP. XL. Of the Penal Laws amongst the Saxons PAssing the Courts and manner of proceedings till Sentence we are now come to the particular Laws that directed the Sentence and first of those that concerned criminal offences During the Saxons time the Commonwealth was in its minority the Government tender the Laws green and subject to bend according to the blast of time and occasion and according to the different dispositions of Governours Ages and People For though the Saxons were in name our first matter yet not they onely but they having once made the breach open and entred this Island it became a common receptacle of those Eastern people the Angles Danes Almains and Goths as their several Laws left with us in power do not obscurely inform us and amongst all the rest the Goths were not the least concerned herein for the Saxon King determining what people shall be holden Denizons in this Kingdom saith That the Goths ought to be received and protected in this Kingdom as sworn Brethren Kinsmen and proper Citizens of this Commonwealth Nor can any Nation upon earth shew so much of the ancient Gothique Law as this Island hath Nevertheless in this mixture of people of several Nations there being a suitable mixture of Laws as the power of any one of these people 's changed so likewise did their Laws change in power and long it was ere a right temper of one uniform Law could be setled yet in the interim these short remembrances left unconsumed by time I have subjoyned that it may appear their motions were excellent though somewhat inconstant in their practice Those times were dark and yet so far as any light appeared the people were to be honoured for their resolution in the defence thereof For there was few of the Commandments of the two Tables which they did not assert by Laws by them made the third and tenth excepted which latter commands the inward man onely and whereof God hath the sole cognizance True it is that the first Commandment containeth much of the same nature yet somewhat is visible and that they bound For whereas in those times the Devil had such power as he did prevail with some and those it may be not a few to renounce God and deliver themselves wholly to his own will they punished this crime with banishment as judging him unworthy their society that would communicate
with Devils Yet if the Delinquent had done any mischief whereby death ensued the parties punishment was death yet might all be discharged by Ransome and good security for good behaviour for time to come For their worship of God they were no less zealous in maintenance of the manner as their Forefathers liked not the use of Images or Pictures for adoration neither did they and though the Clergy in other matters led them much yet in this they were alone for a long time for though the Roman Church had the use of Images above Three hundred years before Austin's coming yet could not that custom fasten upon the Saxons for the space of above One hundred years after Austin's coming notwithstanding the endeavours of Charlemain and Pope Constantine by his bastard-decree begotten upon the dream of the Bishop of Worcester that saw the Virgin Mary's picture brought him in his sleep by her self and with a command from her That it should be set up in the Church and worshipped I say it could not fasten any constant practice of Idol-worship nor ever wrest a Law from the Wittagenmote to countenance the same but rather on the contrary they still preserved the memorial of the second Commandment in the Decalogue even then when as the Romanists had expunged the same out of the number and they enforced the same by a Law of their own making so far as their Clergie or Reverence they bear to Rome would allow It hath been formerly observed that the Saxons took no note of the vice of prophane swearing and cursing which crime if it were in use as it cannot be otherwise conceited but it was as the times then were must lie upon the Clergie-mens account for their neglect of teaching the point or upon the general ignorance of those times which understood not the Commandment nor the Scripture For we find no Canon against it nor scarce any Doctrine concerning it but onely in case of false swearing till Anselm's time True it is that Chrysostom seemeth zealous against all swearing but that was his personal goodness which for ought appeareth died with him And Anselm contending against swearing by the Creatures and idle swearing renders his grounds in such manner as it may be well conceived that he understood not the main I am the rather induced to conceive charitably of those times in regard of their exceeding zeal for the honour of the Lords day which sheweth that so far as their knowledge would maintain them they had zeal to make it into action They began this day doubtless as other days according to the custom of their Forefathers in Germany Nox ducere diem videtur And because they would not allow their secular affairs to trench too nigh that days devotion they made the Lords day to begin on Saturday at three of the clock in the afternoon and to continue till Munday-morning No pastime no not their beloved sport of Hunting was allowed during all that while nor no works were to be done but such as concerned the Worship of God and those Laws they bound with penalty of Fine if the Delinquent were a Free-man if he were a bond-servant he was to be whipped Nor were these the Laws of one King or Age onely but of the whole current of the Saxon Government and may although dark times they were yet put us in these days of light to the blush to enter into comparison with them for their Devotion In their Conversation with men the Saxons seemed yet more strict and being a people of a publick spirit they preferred the good of their Country above all accounting Treachery against it or neglect thereof in time of danger to be a Crime of the greatest concernment and to be punished in the highest degree Proditores transfugas arboribus suspendunt Other Treason than this no not against Kings did they then acknowledge any and therefore the form of the Indictment for contriving the death of their King concluded onely Felonicè as may appear in that form of an Indictment for an offence of that nature intended and plotted against Edmond the Saxon King Whenas for the plotting against Alliance though of common and inferiour nature the Indictment concluded Felonicè Proditoriè And wereas the penalty in case of Treachery against the Country was death and forfeiture of the whole Estate both real and personal In Treachery against the King it was onely loss of life and of the personal Estate And therefore it may seem that Majesty had not yet arrived at its full growth or else that the greatest measure thereof rested in the body still If in any thing the Saxons were indulgent it was in matters of Blood for they were a warlike people and looked upon it as under the regiment of valour and therefore it was punished only with fine according to the old rule Luitur homicidium certo armentorum pecorum numero So as even in Germany they had learned the trick to set a price upon that crime and this they afterward called Manbotta wera wirgida wita and lashlight and which was worse they countenanced that which in after-ages was called deadly feud and so under colour of punishing Murder with revenge they added blood to blood But as times grew more tame and inclining to civility or Religion the cry of Blood was more hideous and this urged on the Law of Appeals and so private revenge became under the power of the Law which punished death with death savouring of such a King as Alfred was who first taught the Scriptures to speak in the dialect of our own Laws like the Rubrick amongst the Canons bringing therewith both strength and beauty yet they had degrees of blood-shed and made a difference in the punishment for some sprung from sudden passion but other was forethought and purposed which last they called Abere Murther or Murther by foreplot or treachery and this was made nullo pretio emendabile and yet towards the times of the Danes devotion grew of so high a dye that a Sanctuary could represent any bloodshed more allowable if not acceptable under the golden colour of recompence made to the King the Lord of the party slain and the parties friends for the loss of a Subject a Tenant and a Friend according to that of their forefathers recepitque satisfactionem universa domus It would be too tedious to recite all the particular Laws with their changes and therefore they shall be lest to the view in the several Laws of Alfred Edmond Canutus and Edward the Saxon Kings Yet one custom first begun by the Danes I cannot omit That if a man were found slain whose parents or friends were unknown by common intendment he was presumed to be a Dane and then if the delinquent were not taken nor fled to Sactuary nor known where he is the whole
Hundred was amerced for the escape but if the party slain were known to be of English Parents it was otherwise This custom lasted long after the Normans time the Dane being only changed into the Norman and was called Englishire Batteries Maimes Imprisonments and other breaches of peace were punished by Fine which they called Fightwitt Grithbrece or Frithbreck and the Delinquent ordinarily put in sureties for the peace for future time The fine was increased by the number of Delinquents joyning in the fact for if seven joyned it was a Riot and the fine was then called Flothbote If the number were five times so many viz. thirty and five then it was a Rebellion or War. Secondly the fine was increased by the time or season of the fact as in Lent or while the Army was in the field because in the first case the holy time was prophaned in the second the Countrey was more endangered when the strength was abroad and the Army might be discouraged at the news of the disturbance at home And therefore the Saxons punished this with death or fine suitable Thirdly the fine was the greater in case of the excellency of the place where it was holy ground or in the presence of great persons such as the King or Bishop Adultery among the old Germans was holden a crime of a high nature the penalty of the woman that committed that crime was death I find not what became of the man. In latter times of the Saxons it grew less penal and more common By Alfreds Law it was finable and the fine called Legierwit By Canutus the man was fined or banished the woman to lose her nose ears and her portion Incest was more penal to the man than Adultery and yet it touched not his life Robbery amongst the Lacedemonians was accounted but a trick of youth the Athenians thoughts were more severe The Germans likewise differed in their censures concerning it the Saxons punished it with death but the Angles with fine only yet Ina the King made it mortal and Canutus followed him therein and Edward the Confessor limited that punishment to thefts of twelve pence in value or above Burning of woods was finable by Ina's Law but Burglary was Felony In King Edmunds time only the Danes made it finable possibly being guilty in their own Consciences of their own propensity to rapine and plunderings This priviledge of the dwelling-house was anciently called Hamsoca or Hamsoken or Hamsokne Trespasses committed upon ground were all comprehended under the general name of Ederbrece or hedge-breaking and the penalty was not only the damage to the party but also fine to the King upon Action which in these days passeth under the name of Quare clausum fregit according to the words of the Writ The damages were more or less according to the time or season when it was done for it when the Army was abroad the damages were doubled and in like manner if done in Lent time If the trespass was done by a Beast the owner must pay the damages but if it were occasioned through the complainants default as through his gap no damages were paid The constant fine to the King in all such trespasses was by Alfreds Law set at five shillings Other Actions also were then used as touching damage done to Goods and Actions upon the case for in Alfreds time the Plaintiff recovered not only damages for trespasses done to Possessions and Goods but also costs for injuries in point of scandal and defamation in case the complainant specially declareth that he is thereby disabled or indamaged in his preferment and maketh proof of the same suitable unto the forms of our pleadings at this day which conclude with per quod c. or deterioratus est c. The Saxons were utter enemies to Perjury they punished it with eternal discredit of testimony and sometimes with banishment or with grievous fines to the King and mulcts to the Judge For that difference I find observed in those days between fines and mulcts albeit the more ancient times used them for one and the same for so the Historian pars mulctae Regi In all these matters where any interest was vested in the Crown the King had the prerogative of pardon yet always the recompence to the party was saved besides the security of the good behaviour for time to come as the case required CHAP. XLI Of the Laws of Property of Lands and Goods and their manner of Conveyance THus passing over some tops of Saxon penal-Laws besides the general rule or Law of eye for eye tooth for tooth c. it now remains as lightly to glance at a few generals concerning the setling and property of possessions in point of Title concerning which although it be true that the Conquerors of this part of the Isle were a body aggregate of many Nations or peoples and so divers customs must necessarily settle by common intendment in several places according as they chose their habitation yet the general custom of the Germans as touching descent of inheritance was to the eldest Son. For Tacitus speaking of the German Cavalry saith That the Horse of the party dead went not to the eldest Son ut caetera but to the most valiant man amongst them of that Linage which words ut caetera do plainly intimate that other matters of profit passed to the eldest Son in point of descent Nor can I conceive how men should be induced to conceit that the custom of Gavelkind was the ancient general custom of the Germans It is true the words of the same Historian have misled some the words are Haeredes tamen successores cuique liberi these taken collectively I grant may import somewhat tending that way but they may as properly be taken disjunctively that the Children inherit by course and if none such were then the Brothers if they failed then uncles And it is not only evident that in the publick Succession to the Crown they had an eye this way but in the descent of private and particular estates as by many instances out of those old Histories may appear and had any other custom been general Alfreds rule by Moses Law had never succeeded nor could that other custom hold out against the constant desire of the Saxons to perpetuate their Families in greatness and honour all which besides the express Laws set forth in the Codes are in my conceit sufficient to induce an Historical Faith That the general course of descent was to the eldest Sons and not to all joyntly Nevertheless out of this Estate of Inheritance divers particular estates were created as well by common custom as by the especial act of the owner of such an estate Such of them as were wrought by custom was occasioned from Marriage whereby if the man was setled of such estate
of the like nature in Histories may appear The Conveyances formerly mentioned concerned Lands and Goods but if no such disposal of Goods were the ancient German custom carried them after the death of the ancestor promiscuously or rather in common to all the Children but in succeeding times the one half by the Law of Edmond passed to the relict of the party deceased by force of contract rather than course of descent After him Edward the Confessor recollecting the Laws declared that in case any one died intestate the Children should equally divide the Goods which I take to be understood with a salvo of the Wifes Dower or Portion As yet therefore the Ordinaries have nothing to do with the Administration for Goods passed by descent as well as Lands and upon this custom the Writ de rationabili parte bonorum was grounded at the Common-law as well for the Children as the Wifes part according as by the body of the Writ may appear CHAP. XLII Of times of Law and Vacancy SUch like as hath been shewed was the course of Government in those darker times nor did the fundamentals alter either by the diversity and mixture of people of several Nations in the first entrance nor from the Danes or Normans in their survenue not onely because in their original they all breathed one air of the Laws and Government of Greece but also they were no other than common dictates of nature refined by wise men which challenge a kinde of awe in the sense of the most barbarous I had almost forgot one circumstance which tended much to the honour of all the rest that is their speedy execution of Justice for they admitted no delays till upon experience they found that by staying a little longer they had done the sooner and this brought forth particular times of exemption as that of Infancy and Child-bearing in case of answering to criminal Accusations But more especially in case of regard of holiness of the time as that of the Lords day Saints days Fasts Ember days for even those days were had in much honour Nor onely days but seasons as from Advent to the Octaves of Epiphany from Septuagesima till Fifteen days after Easter or as by the Laws of the Confessor till Eight days after Easter and from Ascention to the Eighth day after Pentecost And though as Kings and times did change so these seasons might be diversly cut out as the Laws of Alfred Aethelstan Aetheldred Edgar Canutus and Edward do manifest yet all agreed in the season of the year and that some were more fit for holy observation than others And thus by the devotion of Princes and power of the Clergy the four Terms of the year were cut out for course of Law in the Kings Court the rest of the year being left vacant for the exercise and maintenance of Husbandry and particular callings and imployments saving that even in those times the Courts of the County and Hundred held their ancient and constant course Last of all and as a binding Law unto all it was provided that false Judges should give satisfaction to the party wronged by them and as the case required to forfeit the residue to the King to be disabled for ever for place of judicature and their lives left to the Kings mercy CHAP. XLIII The end of the Saxon Government ANd this far of the joynts of the Saxon Government in their Persons Precincts Courts Causes and Laws wherein as the distance will permit and according to my capacity I have endeavoured to refresh the Image of the Saxon Commonwealth the more curious lineaments being now disfigured by time Afar off it seems a Monarchy but in approach discovers more of a Democracy and if the temper of a body may appear by the prevailing humour towards age that Government did still appear more prevalent in all assaults both of time and change The first great change it felt was from the Danes that stormed them and shewed therein much of the wrath both of God and man. And yet they trenched not upon the fundamental Laws of the peoples Liberty The worst effect was upon the Church in the decay of the power of Religion and the Worship of God. For after much toil and loss both of sweat and bloud the Danes finding that little was to be gotten by blows but blows and that the Clergy at the least was the side-wind in the course of all affairs laid aside their Paganism and joyned with the Clergie and as their Converts and Pupils gained not onely their quiet residence but by the favour of the Clergie to make trial of the Throne and therein served the Clergie so well as they brought the people to a perfect Idolatry with times places and persons and subjection of their Estates to Church-Tributes And as at Tennis the Dane and Bishop served each other with the fond Country-man that whether Lord Dane or Lord-Bishop was the greater burthen is hard to be determined Thus became ambitious Prelacy in its full glory and the poor Church of Christ clouded in darkness and little hold left for recovery but onely by the liberty of the Saxon Freemen which the Danes could never conquer not for want of will or power but of time and occasion For the Crown returned to the Saxon-line again after the half age of one man although it was worn by three so God would have it nor did any monument of the Danish Government remain saving a few customs in some places which shew rather that the Danes were here than that they ruled here To sum up all The Saxon Common-wealth was a building of greatest strength downward even to the foundation arched together both for Peace and War. That by the Law of Decenners wherein Justice was the bond their Armies were gathered not by promiscuous flocking of people but by orderly concurrence of Families Kindreds and Decenners all chusing their own Leaders And so Honour Love and Trust conspired together to leave no mans life in danger nor death unrevenged It was a beautiful composure mutually dependant in every part from the Crown to the Clown the Magistrates being all choice men and the King the choicest of the chosen election being the birth of esteem and that of merit this bred love and mutual trust which made them as corner-stones pointed forward to break the wave of danger Nor was other reward expected by the great men but honour and admiration which commonly brought a return of acts of renown Lastly it was a regular frame in every part squared and made even by Laws which in the people ruled as Lex loquens and in the Magistrate as Lex intelligens all of them being grounded on the wisdom of the Greeks and Judicials of Moses Thus the Saxons became somewhat like the Jews distinct from all other people their Laws honourable for the King easie for the Subject and their Government above all other likest unto that of Christ's Kingdom whose
marry at their own will without paying Fine or Composition to the Lord and yet must have the liking of the Lord so far as to declare whether the man intended were his Enemy or not and fit to perform Knight-service This Law was therefore grounded upon the present distress of affairs wherein the Nation was unsetled and common right having established a mutual trust between Lord and Tenant found out this means to preserve the same for if the marriages of those that are related to the Tenant in such manner as may inherit part of all his Lands or have joynture therein should be left altogether at the liberty of the Tenant or his Widow it must needs follow that the mutual trust between Lord and Tenant must fail and the publick receive damage And therefore if this custom were of Norman birth it was begotten upon a Saxon Law and might the rather be owned by the English. The Widow of the King's Tenant having Children shall have her Dower and Portion so long as she keeps unmarried The portion here is in the Latine word maritagium which I take to be the Marriage portion given by the Husband according to the Saxon custom whenas the Dower in Land was not in use whereof is spoken formerly in that Chapter of Dower And the Normans were necessitated to introduce this custom of theirs with themselves partly because it was a priviledge which was their own by birth and it could not be waved without an evident wrong done to the Wives of these men who had ventured their lives in that service but principally because it would not consist with the work in hand to disclaim that custom which must needs be of infinite consequence in the effecting of what was principally sought after viz. the union of the two peoples Normans and Saxons into one I say it was principally sought after by the Norman Conquerour if not led thereto by his own genius yet necessitated thereto by force of reason of State as shall appear hereafter And what could be imagined a more ready way to stay the effusion of bloud and all other unhappy events of enmity than by taking away enmity it self or a more speedy and certain course for union than to reduce the Men and Women of each people to mutual society and to seal up all by a lasting bond of Marriage or greater encouragement for the comfortable proceedings therein than the setling of the constant maintenance of the Wife in case of survivorship by the Law of Dower of the Lands and Tenements of the Husband which was so full of contingencies and uncertainties in the portion of Goods that was by the Saxon Law appointed to the Wife in such case Nor was this all for by Marriage thus made to the Normans they had a great hold not so much over the English as in the English and that not onely during coverture but by reason of this title of Dower the Women became Tenants and under the Lords wing so as they durst not willingly and illegally offend their Lord in their Widowhood nor by Law nor reason match themselves and their Dowry to any other that was not first allowed by the Lord to be in friendship with him and thus became the Tenants Widows to be at the liking of the Lord for their marriage And the like hereto may be said concerning the Husband in case of Tenant by the courtesie and however by the Norman former practice it was much disturbed yet by Henry the first it was again reduced to its former right rather than original arising from his grant as some hold and proved advantageous for the ends aforesaid Now as touching their marriage-portion of Goods because the Saxon Law had already endowed them thereof they could not be induced to lay down their known ancient right till they found the new Law of Dower to settle and so for some time both Laws were in force until the more ancient Saxon law had an honourable burial Nevertheless for the present the Law abridged that right so far as to limit it to the Widow during Widowhood according to the former Saxon-law Upon consideration of all which it may well be conceived that the power of the Lords in consenting or dissenting to the marriages of their Tenants Widows and Wards was not so much an usurpation upon the Common right of the English Subjects as a custom rationally and with great wisdom as the course of affairs then stood upholden and allowed amongst them principally for the speedy setling of a peaceable Government and consolidating of two Nations into one and wherein England was then so happy as to come to a conclusion in seven years which cost their Ancestors night Two hundred years experience with the Britains besides a world of bloud-shed that might have been spared e're they could find out the right way to a desired peace by mutual marriages had between them Such Widow shall have the custody of the Lands of such Children or otherwise such other person as by right ought to have the same This is the first news of Wardships that passed abroad cum privilegio of a received Law which together with the former declare the right custom of the Normans and thereby the injustas consuetudines quibus Anglioe regnum opprimebatur viz. Arbitrary Relief taken of the Tenant's Estate arbitrary Marriages made of their Peersons and arbitrary Grants of Guardianship of their Lands For as yet oppression was not so high-flown as to cast the government of the persons of their Wards out of the view of the Lords provisionary care upon adventure of the next in Law whether man or woman wise or unwise under pretence to train him up in military service fit for the Lord 's own safety and the Kingdoms lifeguard But it was the proper ground of the Lord 's own seisure and right of Wardship he being looked upon by the eye of common reason as the onely meet man that both could and would effect that work so as might be most advantageous to the publick which seemed to be chiefly concerned herein And upon the same general ground the survey of fools accompanied the former albeit it was not in practice till Henry the First brought it in as the Mirror of Justice saith fol. 258. yet it came upon an ancient foundation laid in the time of the Danes For my own part I will not dispute the point whether this custom of Wardship was purely Norman or whether it was derived from the Saxons anciently who possibly might have some respect to Orphans in such cases to train them up for the publick service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some such particular persons in Learning for the service of the Publick in time of peace and civil Government Yet thus much appeareth that Guardianship of Lands was a known Custom
cases and of the Writ de cautione admittenda Persons cited and making default may be interdicted and the King's Officer shall compel him to obey If the King's Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the Process in the Spiritual Courts was to be regulated according to Law. Nor did it lie in the power of such Courts to order their own way or scatter the censure of Excommunication according to their own liking This together with all those that forego the Arch-bishop upon his repentance absolutely withstood although he had twice consented and once subscribed to them having also received some kind of allowance thereof even from Rome it self Clergy-men holding per Baroniam shall do such services as to their Tenure belong and shall assist in the King's Court till judgement of Life or Member Two things are hereby manifest First that notwithstanding the Conquerour's Law formerly mentioned Bishops still sate as Judges in the King's Courts as they had done in the Saxon times but it was upon causes that merely concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spiritual-Courts and not the Clergie out of the Lay-Courts Secondly that the Clergie especially those of the greater sort questioned their services due by Tenure as if they intended neither Lord nor King but the Pope onely Doubtless the use of Tenures in those times was of infinite consequence to the peace of the Kingdom and government of these Kings whenas by these principally not onely all degrees were united and made dependant from the Lord paramount to the Tenant peravale but especially the Clergie with the Laity upon the Crown without which a strange metamorphosis in Government must needs have ensued beyond the shape of any reasonable conceit the one half almost of the people in England being absolutely put under the Dominion of a foreign power Sanctuary shall not protect forfeited Goods nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened without License It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without License or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Church-men to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into a Monastery without the Lord's consent Upon the same ground with the former for the Lord had not onely right in his Tenant which could not be aliened without his consent but also a right in his Tenant's Children in regard they in time might by descent become his Tenants and so lie under the same ground of Law For although this be no alienation by legal purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affairs These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last But their Captain-Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Sampson-like effected more than his life For the main thing of all the rest the Pope gained to be friends for the loss of so great a stickler in the Church-affairs as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishops espied a muse through which all the game of the Popedom might soon escape and the Pope be left to sit upon Thorns in regard of his Authority here in England For let the Metropolitan of all England be a sworn servant to the Metropolitan of the Christian World and the rest of the English Bishops not concur it will make the Tripple Crown at the best but double Alexander the Pope therefore meaned not to trust their fair natures any longer but puts an Oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceal their Counsels 4. To aid the Roman Papacy against all persons 5. To assist the Roman Legat. 6. To come to Synods upon Summons 7. To visit Rome once every three years 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their Estates Bodies and Souls unto her service that which remains the King of England may keep And well it was that it was not worse considering that the King had vowed perpetual enmity against the Pope But he wisely perceiving that the King's spirit would up again having thus gotten the main battle durst not adventure upon the King's rear lest he might turn head and so he let the King come off with the loss of Appeals and an order to annul the customs that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to lose the scare-crow-power of Rome yet it befel him as many great spirits that favour prevails more with them than fear or power For being towards his last times worn with grief at his unnatural Sons a shadow of the kindness of the Pope's Legat unto him won that which the Clergy could never formerly wrest from him in these particulars granted by him that No Clerk shall answer in the Lay-courts but onely for the Forest and their Lay-fee This savoured more of courtesie than Justice and therefore we find not that the same did thrive nor did continue long in force as a Law although the claim thereof lasted Vacancies shall not be holden in the King's hand above one year unless upon case of necessity This seemeth to pass somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole Judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the King's Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a Hundred murthers To prevent this evil the King loth to enter the List with the Clergy about too many matters let loose the Law of feud for the friends of the party slain to take revenge and this cost the bloud of many Clerks The Laity haply being more industrious therein than otherwise they would have been
continually plagued them A Clerk taken upon Felony being demanded shall be delivered to the Ordinary but being indicted shall not be dismissed by the Ordinary without due purgation With due respects to the judgment of those grave and honourable persons of the Law it seemeth to me that before the making hereof the use was that if a Clerk was defamed or appealed by an Offender for Felony before Conviction he was forthwith imprisoned Nor could he be delivered unto the Ordinary upon demand before Inquest taken unless upon sufficient Security to endure the Tryal before the Judges itinerant which thing was not easie to be had for a Clerk as times then were This Law therefore was made in favour of the Clergie who required that such as were Clerici noti honesti should forthwith upon their apprehending be sent unto their Ordinary and those which were vagi incogniti should upon demand be delivered to be judged by their Ordinary freely and non expectatis Justiciariis quibuscunque Such wandring Clerks therefore the Clergy will have delivered before Inquisition if demand be made Nevertheless because the Indictment passed many times before the Demand came for by the fifteenth Article of the Clergies Complaints foregoing it appears that the Lay-Judge made more than ordinary speed for fear of stop This Law provided that such also should be delivered to their Ordinary and that due purgation should pass before the party were delivered and in case the Ordinary neglected his duty herein he was liable to a Fine or Amercement Thus is Briton to be understood in this point whereas Bracton speaking of such as are convicted affirmeth That if demand be made of such as are not indicted for of such he speaketh they ought to be delivered without Indictment I suppose he meaneth by the Church-Law for till this Statute the Temporal Judges practice was otherwise as appeareth by the fourteenth Article of the Clergies Complaint foregoing and so by this Law the fourteenth and fifteenth Articles of the Clergies Complaint are answered Disturbers of the Freedom of Elections fined With submission to the judgment of others I suppose that this was framed principally for the satisfaction of the Clergies Complaints in the third fourth and fifth Articles foregoing and I am the rather induced hereto because as touching Elections into Temporal places of Government several Laws are especially framed such as are Elections of Sheriffs and Coroners whereof the one is West 1. cap. 10. the other Artic. super Cart. cap. 10. and no Law is especially made as touching the Elections of the Clergie if not this Ordinaries having the Goods of the Intestate shall answer his Debts Originally the Goods of the Intestate passed by a kind of descent to the Children afterward by a Saxon Law the Wife had her part and this continued all the Normans time But now the strength of the Canon-Law growing to its full pitch after a long chase attached the prey In Henry the first 's time they had gotten a taste for although the Wife and Children or next of kin had then the possession yet it was for the good of the Soul of the deceased and the Ordinary had a directing power therein and so was in the nature of an Overseer and somewhat more Afterwards in the time of King John the Clergie had drawn bloud for though the possession was as formerly yet the dividend must be made in the view of the Church and by this means the dividers were but meer instruments and the right was vanished into the Clouds or as the Lawyers term it in Abeyance But in Henry the third's time the Clergy had not onely gotten the game but gorged it Both Right and Possession was now become theirs and wrong done to none but the Clouds This was not well digested before Edward the first recovered part of the morsel and by this Law declared the use to be for the benefit of the deceased And thus the one was satisfied in having what he used not the other in using what he had not But these are but gleanings the Law of Circumspecte agatis brings in a Load at once For the Clergie being vexed with the passing of the Statute of Mortmain whereof hereafter when we come to speak of the Clergies losses they make grievous complaints of wrongs done to their priviledges And after six years the King is at length won and passed a writing somewhat like a grant of Liberties which before-times were in controversie and this Grant if it may be so called hath by continuance usurped the name of a Statute but in its own nature is no other than a Writ directed to the Judges in substance as followeth Take good heed that you do not punish the Bishop of Norwich and his Clergie if they hold plea in Court-Christian of things merely spiritual for in such cases the Ecclesiastical Judge hath cognisance notwithstanding the King's prohibition It is therefore neither Grant nor Release but as it were a Covenant that the Clergy shall hold peaceable possession of what they had upon this ground that the King's prohibition hath no place in such things as are merely spiritual So as hereby the Clergy got a Judgement against the Crown by confession and an Estoppel upon this maxime that spiritual things belong to spiritual men into which rank the King's person cannot come thus thought they but what are spiritual causes and why so called are they such as concern spiritual persons and things this was the old way mark but if we bring into this Category Adultery Fornication Incest c. we shall marâ—all Linwood tells us that mere spiritualia are such as are sine mixtura temporalium there may be somewhat in this though I cannot find it nor can I make out the sence of the term any other way but to limit it to such things which by common custom the Ecclesiastical Judge had cognizance of for otherwise neither King nor Law ever intended it to be expounded by the Canon nor was it the intent of this Writ Law or License call it what you will thus to conclude as the particulars following will manifest Fornication Adultery and such-like punished sometimes upon the body and sometimes upon the purse These crimes the Saxons punished by the Temporal power as I have already shewed The Normans continued this course if we may believe the Conqueror's Laws which gave the fine in such cases to the Lord of the Delinquent And it is confessed that Henry the first and the second continued it as the Clergies own complaint just or unjust doth witness And what course was holden in the time of King Steven and John is to me unknown nor is it much to be regarded seeing the latter did he cared not what and the former to gain the good will of the Clergie regarded not what he did The custom therefore cannot be made good for the Clergie much less to punish the bodies of
and nothing shall hinder it but the special 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 Alms. Nevertheless it seemeth to be such restraint that the Templars and Hospitallers were fain 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. provided a Law to make this also in nature of a Mortmain within the Statute made in the seventh year of his Reign called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmain the Lord should have liberty to enter if he failed then the Lord Paramount or if he failed the King should enter and dispose of the same and that no license of Mortmain should be sued out but by the mean Lord's assent and where part of the premises remain still in the Donor and the original Writ mentioneth all the particulars And thus at length was this issue for the present stayed which hitherto wasted the strength of the Kingdom and by continual current emptying it into the mare mortuum of the Clergie consumed the maintenance of Knight service by converting the same to Clerk-service No Judge shall compel a Free-man to make Oath without the Kings command So is the sence of the Law rendred by an ancient Authour and I hope I shall not wrong the Text if I affirm that the Ecclesiastical Judge was included within the equity though properly he be not Balivus for the Law intends to shew that it is a liberty that the Subject hath not to be compelled to take Oath without the Kings especial command and by consequence it sheweth also that the King at that time and until then had the directory of Oaths for it was an ancient Liberty given in the Kings Charters unto such as they pleased viz. to impose Oaths 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 Abbey of Glastenbury amongst other Athas Ordulas and the Church-men 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 that Ordeal and Oaths should be forbidden upon the holy Feasts and lawful Fasts And a wonder it is how it escaped the gripe of the Clergie 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 Swear surely much more not to be compelled to accuse himself unless by the Law he be especially bound for it is Glanvil's rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia But the power of the Clergie now was grown strong and they begin to remember themselves and that Oaths are of a holy regard and they men for holiness best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claim and to make a sure Title they get a grant from Pope Innocent to Steven Langton Arch-Bishop of Canterbury of a faculty of licensing administration of Oaths 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 lost man had less care of such smaller matters and therefore allowed that his Judges of Assizes should be licensed by the Arch-bishop to administer Oaths in their Circuits in the sacred times of Advent and Septuagessima and this course continued till Henry the Eighth's time The Clergie having thus gotten the bridle gallop amain they now call whom they will and put them to their Oaths to accuse other men or themselves or else they are Excommunicated Henry the Third withstood this course if the Clergie-mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the Law holds its course and in pursuance thereof we find an attachment upon a prohibition in this form ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned and by Ecclesiastical censures constrained Lay-persons men or women to appear before him to swear unwillingly at the Bishops pleasure to the great prejudice of our Crown and Dignity and contrary to the custom of the Kingdom of England And thus both King and Clergie were at contest for this power over the peoples Consciences to which neither had the right otherwise than by rules of Law. Bigamists shall not be allowed their Clergie whether they become such before the Council of Lyons or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergie it seemeth by this Law that they had Clergie that were married once and again and yet before and after the Council were admitted as Clerks in the judgment of the Law. But the general Council interposes their authority and deprives them that are the second time married of all their priviledges of Clergie It was it seemeth twenty years and more after that Council before the Church-men in England were throughly reformed for either some were still Bigami at the making of this Law or as touching that point it was vain nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whether this slow Reformation arose from the defect in Law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the Canons of general Councils eo nomine had formerly of ancient times gotten a kind of preheminence in this Nation but by what means is not so clear In the Saxon times they were of no further force than the great Council of this Kingdom allowed by express act For the Nicene Faith and the first five general Councils were received by Synodical confirmations of this Kingdom made in the joynt meeting both of the Laity and Clergie and during such joynt consulting the summons to the general Councils was sent to the King to send Bishops Abbots c. but after that the Laity were excluded by the Clergie from their meetings and the King himself also served in the same manner the Summons to the general Council issued forth to the Bishops immediately and in particular to each of them and to the Abbots and Priors in general by vertue whereof they went inconsulto Rege and sometimes Rege
and Kent are saved out of this Law by the Statute the first whereof saves the Land to the Heir from the Lord and the second saves the same to the Heirs Males or for want of such to the Heirs Females and to the Wife her moity until she be espoused to another man unless she shall forfeit the same by fornication during her Widow-hood And by the same Law also the King had all Escheats of the Tenants of Archbishops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden All Wears shall be destroyed but such as are by the Sea-coast The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the Wears to his own use as appeareth by a Charter made to the City of London recited in the second Institutes upon this Law and this was to the detriment of the Free-men especially of the City of London in regard that all Free-men were to have right of free passage through Rivers as well as through Highways and purprestures in either were equally noxious to the common liberty And therefore that which is set down under the example or instance of the Rivers of Thames and Medway contained all the Rivers in England albeit that other parts of the Kingdom had not the like present regard as the City of London had The Writ of precipe in capite shall not be granted of any Freehold whereby a man may be in danger of losing his Court thereby It seemeth that it was one of the oppressions in those times that if a Suit were commenced in the inferiour or Lords Court concerning a Freehold a Writ of precipe in capite might be had upon a Surmise that the Freehold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoil of the Demandants case and therefore I think the Charter of King John instead of the word Court hath the word Cause There shall be but one known Weight and Measure and one breadth of Cloaths throughout the Realm of England This Law of Weights and Measures was anciently established amongst the Saxons as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John. And as touching the measure of the breadth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudicial to the common Trade of the Kingdom it was setled in this manner to avoid deceit and to establish a known price of Cloaths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the Measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of Life and Member shall be readily granted without Fees. This was a Law of latter original made to take away a Norman oppression for by the Saxon Law as hath been already noted No man was imprisoned for Crime not bailable beyond the next County-court or Sheriff's Torn but when those rural Courts began to lose their power and the Kings Courts to devour Tryals of that nature especially by the means of the Justices itinerant which were but rare and for divers years many times intermitted during all which time supposed Offenders must lie in Prison which was quite contrary to the liberty of the Free men amongst the Saxons This occasioned a new device to save the common liberty by special Writs sued out by the party imprisoned or under bail supposing himself circumvented by hatred and malice and by the same directed to the Sheriff and others an Inquisition was taken and Tryal made of the Offence whether he deserved loss of Life or Member and if it were found for the supposed Offender he was bailed till the next coming of the Justices and for this the Writ was called the Writ of inquisition of Life or Member and sometimes the Writ de odio atia But these Inquests were soon become degenerate and subject to much corruption and therefore as soon met with a countercheck from the Law Or first rather a regulation for it was ordained that the Inquest should be chosen upon Oath and that two of the Inquest at least should be Knights and those not interessed in the Cause But yet this could not rectifie the matter for it seemed so impossible to do Justice and shew Mercy this way that the Writ is at length taken away and men left to their lot till the coming of Justices itinerant But this could not be endured above seven years for though the King be a brave Souldier and prosperous yet the people overcome him and recover their Writs de odio atia again Lords shall have the Wardships of their Tenants Heirs although they hold also of the King in Petit Serjeanty Socage Burgage or Fee-farm Inferiour Lords had the same right of Wardships with the King for their Tenures in Knight-service although their Tenants did hold also of the King unless they held of him in Knight-service which was a service done by the Tenant's own person or by the person of his Esquire or other deputy in his stead But as touching such service as was wont to be done to him by render or serving him with Arms or other utensils this was no Knight-service though such utensils concerned War but was called Petit Serjeanty as in the Law-books doth appear Nevertheless Henry the Third had usurped Wardships in such cases also and the same amongst others occasioned the Barons Wars No Judge shall compel a Free-man to confess matter against himself upon Oath without complaint first made against him Nor shall receive any complaint without present proof This Law in the Original is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in express words it is thus No Judge shall compel any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter enquired after and therefore they used in such cases to put him to Oath and if he denied the matter or acquitted himself the Judge would sometimes discharge him or otherwise put him to his Compurgators and this was called lex manifesta or lex apparens And it was a trick first brought in by the Clergie and the Temporal Judges imitated them therein and this became a snare and sore burthen to the Subjects To avoid which they complain of this new kind of Trial and for remedy of this usurpation this Law reviveth and establisheth the onely and old way of Trial for Glanvil saith Ob infamiam non solet juxta legem terrae aliquis per
but as heavy dull Debates and inconvenient both for speed and secrecy which indeed are advantages for weak and unwarrantable councils but such as are well-grounded upon truth and strength of reason of State are not afraid to behold the clearest noon-day and prevail neither by speed nor secrecy but by the power of uncontrolled Reason fetcht from truth it self The Grand Council of Lords also are now no less burthensome For though they were not able to prevail against the private designes of an arbitrary Supremacy yet do they hinder the progress tell tales to the people and blot the names of those that are of that aspiring humour which once done like that of Sisyphus they have no other end of their labour than their toil Thus perished that ancient and rightly honourable Grand Council of Lords having first laid aside the publick then lost unity and lastly themselves besides the extream danger of the whole body For the sence of State once contracted into a Privy-Council is soon contracted into a Cabinet-Council and last of all into a Favourite or two which many times brings damage to the publick and both themselves and Kings into extream praecipices partly for want of maturity but principally through the providence of God over-ruling irregular courses to the hurt of such as walk in them Nor were the Clergie idle in this bustle of affairs although not very well employed for it is not to be imagined but that these private prizes plaid between the Lords Commons and King laid each other open to the aim of a forrein pretension whilst they lay at their close guard one against another And this made an Ecclesiastical power to grow upon the Civil like the Ivy upon the Oak from being Servants to Friends and thence Lords of Lords and Kings of Kings By the first putting forth it might seem to be a Spiritual Kingdom but in the blossom which now is come to some lustre it is evident to be nothing but a Temporal Monarchy over the Consciences of men and so like Cuckows laying their Eggs in nests that are none of their own they have their brood brought up at the publick charge Nevertheless this their Monarchy was as yet beyond their reach it was Prelacy that they laboured for pretending to the Pope's use but in order to themselves The Cripple espyed their halting and made them soon tread after his pace he is content they should be Prelates without measure within their several Diocesses and Provinces so as he may be the sole Praelatissimo beyond all comparison And undoubtedly thus had been before these times destroyed the very principles of the Church-Government of this Kingdom but that two things prejudiced the work The one that the Papalty was a forrein power and the other that as yet the Pope was entangled with the power of Councils if he did not stoop thereunto The first of these two was the most deadly Herb in the Pottage and made it so unsavoury that it could never be digested in this Kingdom For Kings looking upon this as an intrenchment upon their Prerogative and the People also as an intrenchment upon their Liberties both or one of them were ever upon the guard to keep out that which was without and would be ruled neither by Law nor Counsel And therefore though both Kings and People yielded much unto the importunity of these men and gave them many priviledges whereby they became great yet was their greatness dependant upon the Law of the Land and Vote of Parliament and though they had the more power they nevertheless were not one jot the more absolute but still the Law kept above their top I deny not but they in their practice exceeded the rule often and lifted themselves above their rank yet it is as well to be granted that they could never make Law to bind the Church-men much less the Laity but by conjunction of the Grand Councils both for Church and Commonwealth-affairs nor could they execute any Law in case that concerned the Liberty or Propriety of either but in a Synodical way or as deputed by the Parliament in that manner And therefore I must conclude that in these times whereof we treat the principles of Church-Government so far as warranted by Law were in their nature Presbyterial that is both in making Laws and executing them Bishops and Arch-bishops were never trusted with the sole administration of them but in and by consent of Synods in which the Clergy and Laity ought to have their joynt vote And all power more or contrary hereto was at the best an usurpation coloured by practice which was easily attained where there was a perpetual Moderatorship resting in the Bishop and over all the Pope the King Lords and Commons in the mean while being buried in pursuit of several interests elsewhere To make all semblable the Free-men met with the sad influence of these distempers as well from the King and Lords as the Clergy Kings to save their own stake from the Pope remitted of that protection which they owed to their Subjects and let in upon them a floud of oppressions and extortions from the Romish and English Clergy and so like a little ship cast out a Barrel for the Whale to pursue till it gets away But this changed no right The Lords by their parties shattered them asunder and dismembred their body by intestine broils The Clergy more craftily making some of them free Denizons of the Roman See and taking them into their protection whilst others of the Free-men at a distance were exposed as a prey to the continual assaults of those devouring times All these conspired together to deface and destroy that ancient and goodly bond of Brotherhood the Law of Decenners by which the Free-men formerly holden together like Cement in a strong Wall are now left like a heap of loose stones or so many single men scarcely escaping with their skin of Liberties and those invaded by many projects and shifts in Government of State-affairs So must I leave them until some happy hand shall work their repair both for time and manner as it shall please that great and wise Master-builder of the World. FINIS THE CONTINUATION OF THE Historical Political DISCOURSE OF THE LAWS GOVERNMENT OF ENGLAND Until the end of the REIGN of Queen Elizabeth WITH A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII THE CONTENTS OF THE Several CHAPTERS of this BOOK I. THe sum of the several Reigns of Edward the Third and Richard the Second fol. 2 II. The state of the King and Parliament in relation of him to it and of it to him fol. 9. III. Of the Privy Council and the condition of the Lords fol. 16 IV. Of the Chancery fol. 21 V. Of the Admirals Court. fol. 24 VI. Of the Church-mens interest fol. 27 VII Concerning Trade fol. 38 VIII Of Treason and Legiance with some Considerations
and Masters under Cade and Straw that might have brought the Commonwealth into a hideous Chaos had not the Lords and Great men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kind of rage that put it self forth beyond the ordinary temper of his mind Much of this mischief was imputed to Wickliff's Doctrine for it is an ordinary thing to proclaim all evils concurring with the very joynt of Reformation to be the proper fruits thereof But I look upon it as a fruit of corruption that endeavours to stop the breath of Reformation in the birth And there is somewhat of a hidden influence from above in the thing for it was not onely the Cup of England to be thus troubled but France and other places had their portion suitable The King's minority rendred him unequal unto these contrary motions he was in his Eleventh year when he entred the Throne and which was worse his years came on faster than his parts but his work posted before them all The common help of Protectors left him yet more unhappy for they were prepossessed with strong engagements of particular Interests and so were either not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affairs and Interests an uncertain good that brings forth a certain evil for variety of Instruments and Interests move several ways and though the end be one the difference concerning the way many times doth as much hinder the Journey as so many blocks in the way The Protectorship was thrice changed the King's Uncles had the first essay any one of them was big enough for one Kingdom but all of them together were too great to make one Protector The Duke of Lancaster would have done well alone if he had been alone and minded that work alone but he being somewhat engaged with the Wickliffists and so entangled with the Clergy and other restless spirits and drawn off by his private aim at the Crown of Castile saw this work too much and so he warily withdrew himself leaving the Directory to a Committee of Lords a soveraign Plaister questionless where the times are whole but not for these distractions wherein even the Committee it self suffered its share Thus the breach is made the wider and for a cure of all the Government is committed into one hand wherein the Earl of Warwick acquitted himself well for he was wise enough to observe such as the people most honoured And thus passed over the two first years of the King's Reign The remainder of the King's minority was rather in common repute than in true account For the King however young took little more from the Protector than he saw meet to colour his own commands with opinion of Regularity and so his Will came to full strength before his Wisdom budded Thus lifted up he sets himself above all interests of Parliaments Protectors Counsellors Uncles Wise men and Law leaving them all to be rules for those below And so long as the King's desire is thus served he is content to be reputed a Minor and be as it were under protection of others though not under their direction and is content to continue thus until his Two and twentieth year Some might think him very moderate had he been moderate but he forbears suing out his Livery so long as he may live without care and spend without controul For by this time the humour of his great Grandfather budded in him he pawned his Heart to young men of vast desires and some say so inordinately as he prostituted his Chastity unto them And it is no wonder if the Revenues of the Crown are insufficient for such Masters This the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crown deflowred for want of maintenance it is very true nor to see the Crown deflowred of its maintenance A Parliament therefore is called in which divers Lords associate and prepare Physick for the King 's lavish humour which being administred wrought for Ten years after till it had purged him of his Life and the Kingdom of their King. It was an Act of Parliament that gave power to Fourteen Lords and others to regulate the profits and Revenues of the Crown and to do Justice to the people this was to continue for one whole year The Parasites no sooner found the effect hereof to their cost but the King grows sick of it and finds an Antidote to over-rule Acts of Parliament by Acts of Privy-Council declares this ill-favoured Commission void and the Contrivers Advisers and Enforcers Traytors To make it more Majestical he causeth the Judges to subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in haste an Impeachment of these Commissioners of High Treason and supposing that they would not readily stoop himself stoops lower for he would put his Right to trial by Battle which was already his own by the judgement of the Masters of the Law For so they may be well called seeing they had thus mastered it In this the King had the worst for he lost his Honour and himself God hath a care of common Right even amongst Idolaters Then comes the Parliament of wonders wherein the Kings Party are declared Traytors and the chief Judges with their Law judged by another Law. The King not meddled with thinks it high time to come out of his Minority and assumes the Government of the Kingdom and himself to himself being now Three and twenty years of Age old enough to have done well if he had cared for it But resolving to follow the way of his own will at length it led him to his own ruine Onely for the present two things delayed it viz. the Authority Wisdom and Moderation of his Unkles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the people The benevolent aspect of the people not for their own advantage but for the publick quiet procured many Parlies and Interviews between the King and people and many Laws for the upholding of the Court and Government although both War Laws Justice and Councils all are faint as all is faint in that man that hath once dismann'd himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himself being nigh Eight and twenty years old takes a Creature like a Wife but in truth a Childe of Eight years old and this is to get peace with France It is no wonder if now he hunts after unlawful game and that being ill taken brings all things out of order For abused Marrige never wants wo. Civil men are now looked upon as severe Cato's and his Unkles especially the Duke of Gloucester with a jealous eye which accomplished his death in
according to the ancient Law of the Kingdom Either therefore the Privy-Council had no power to hold any Pleas at all or else no power of Trial. The first of these was concluded in open Parliament and the second as good as so for if the first then the second will come on undeniably But suppose all this be given up yet was this Liberty to hold Pleas so qualified that the person could not be touched till the thing did appear by Inquisition and then in a legal way Such proceeding was had upon suggestion made against the City of London in Henry the Third's time for one of the Judges was first sent into the City to find the suggestion by a Jury and then the Lord Mayor appeared before the Lords and traversed the matter and in a manner appealed or rather demanded to be tried according to the custom of the City And the like course do we find observed in our Law-Reports of these times in a Case concerning the price of Wool by a false Report The foot of the whole account will be this That the work of Judicature of the Privy-Council in these times in cases of Crimes was to receive Articles and award Inquisitions and after return in nature of a Grand Inquest to Recover Traverse and to order Trial at the Common-Law and upon Verdict returned to Fine and Ransom In other Cases either of Right or Equity in matters of private property they were determined either by Judges of the Bench or Chancery although possibly the suit was Coram Concilio for that all the said Judges were of the King's Council And yet as I dare not affirm so I cannot deny but it might also be possible that some matters especially these of a greater consequence either in their own nature or in regard of the persons whom they concerned were determined by the major Vote of the whole Council in a prudential or rather arbitrary way But this was Invita Minerva and used so rarely as the path is grown out of view saving some few footsteps here and there remaining which shew that the Grand Council of Lords had been there CHAP. IV. Of the Chancery IT is the birth of the King's power in Judicature and may deserve the name of the first-born For though it had no better Title in these later times than Officium because amongst other of the King's Escripts it formed Writs remedial for such as had received wrong yet even by that work it was in repute for so much skill in the Law of the Land that by the consent of all it was as well able to advise a remedy as to advise the Complainants where to have it And yet it had one advantage further that it was an Office of remembrance to the King who is a person of great trust in the Law and gave such credit to all acts done before him as being entred into the remembrance became of the highest nature of Record against which no Plea did lie Amongst these matters of debt and contract coming into the account this Office taking notice of the Record took cognizance of the thing and for the executing thereof and thus in these and such-like Cases granted Judicial Writs and so found out a way of Judicature to as many Causes as the State would trust it with And because it pretended cognizance onely of matters of Record before them they found out a way of examining of Witnesses by Commission and returning their Depositions in writing which being become a Record before them they gave their Sentence upon the whole matter without the ancient ordinary Trial per pares It becomes a kind of peculiar exempting it self from the ordinary course in manner of Trial and from the ordinary rules of Law in giving of Sentence and as a Back-door for the King 's Arbitry in case of Judicature in matters of Common-pleas as the Council-Table was in Crown-pleas They both are looked upon with a very pleasing eye of Majesty which loves not to be strait-laced yet all is embattelled under the Colours of Equity Honour Conveniency and Conscience like a Monopoly that is bred under the wings of the publick but feeds it self upon it That this had attained the Title of a Court so anciently as in King Steven's time as the Honourable Reporter noteth I much question by the Title that Fleta gives it in later times nor under his favour will that Testimony cited out of the History of Ely warrant it but upon a mistaken ground of misplacing the note of distinction For I take the words to be thus translated King Etheldred determined and granted that the Church of Fly should for ever in the King's Court hold the dignity of the Chancery and not hold the dignity of the King's Court of Chancery Nevertheless it is clear that these times brought it to that condition that it might well carry that name if formerly it had not For it grew very fast both in honour and power and this not by Usurpation though it did exceed but by express donation from the Parliament Yet is this power much darkned in the limits and extent thereof chiefly in regard that the Chancellor is betrusted with many things whereof there is no evidence for the Chancery to claim any cognizance For he was in these times a person of many interests and relations being one of the Quorum in the Star-Chamber of the King's Council chief in the Chancery most commonly a Clergy-man and therewith Legate à Latere and in these several Relations might act directly and yet in several Courts And therefore though he had power with others to punish neglects of Execution of the Statutes of Wines by Act of Parliament and also of the Statute concernign Victual and to determine matters of controversie between parties in Cases depending before the Parliament and in some matters that concern the King's Revenue yet cannot these be said to be the proper work belonging to the cognizance of the Chancery but to the Chancellor by special Commission in another Relation Albeit I cannot deny but the Court it self had cognizance in matters of as strange a nature Viz. To punish disturbances of Merchants in their Trade to see to the executing of the Statutes of Purveyors and to remedy grievances contrary to other Statutes Which general words let in a wild liberty to that Court to intermeddle in Laws which were never intended for their touch to punish Nusances according to discretion to give remedy to Merchants upon the Statute of Staple so that it is clear enough the Parliament intended it should be a Court and gave their Seal to their power of Judicature Nor as it seemeth was this any regret to the Courts of Common-Law but as a thing taken for granted For the Reports tell us That if the King grants Tythes arising from without the bounds of any Parish the Patentee shall sue in the Chancery by Scire Facias and shall there proceed to
going out and nothing coming in he had a rule upon his private expences a good gloss upon the publick and a platform for the augmenting of the Treasure of the Kingdom as well for the benefit of the people as of the Crown In order to the first it is considerable that the Royal Family was great and numerous above all his Predecessors that besides the King and Queen who were of a gallant and accomplisht deportment they had a Son a Prince of as great renown as ever Prince had and he also a Family suitable to his generosity that they had other Children every one like their Father both for War and Peace and that for the maintenance of all these the expences must be in reason larger than formerly they were wont to be Nevertheless because purveyance for the King had already swelled so big that all other oppressions seemed to be swallowed up into that one the King to moderate the rigor thereof made nigh twenty Statutes first excluding all servants at wages and Horses and Dogs which were put to board with the Sheriffs then reducing the purveyance only to the Families of himself his Wife and Children then to the Families of himself the Queen and Prince and in the levy hereof some mens Estates were absolutely priviledged and some kind of Goods as Sheep before shearing and Trees about the dwelling house Nor is the setling of the manner less considerable It must be levyed by Authority in writing under the Seal and it must not be taken against the owners will or upon malice nor must be spared for reward the price must be the same with the true Market-price the measure according to the common measure stricked and the payment must be immediately if the price be under Twenty shillings if above it must be made in a quarter of a year and no man must charge more carriage than is necessary And thus was this wild Ivy of Purveyance that like some kinds of Plants spreads over all by rooting up and cutting down brought into some kind of fashion that if it did no good it might do the less hurt unto the people Secondly Although it be true that Edward the Third was a King of many Taxes above all his Predecessors yet cannot this be imputed as a blot to the honour of the Law or Liberty of the people for the King was not so unwise as either to desire it without evident cause or to spend it in secret or upon his own private interests nor so weak and irresolved as not to employ himself and his Souldiers to the utmost to bring to pass his pretentions nor so unhappy as to fail of the desirable issue of what he took in hand So as though the people parted with much money yet the Kingdom gained much honour and renown and becoming a terrour to their Neighbours enjoyed what they had in fuller security and so were no loosers by the bargain in the conclusion Secondly although they parted with much yet nothing to Prerogative but in a Parliamentary way and so it was not taken but given Thirdly though the Taxes were frequent yet but light for frequent light Taxes steal insensibly without regret and as they grow into matters of course so they meet with acceptance of course Two things made them of light account First they were not Taxes altogether of Money in kind but of Goods such as the Sheaf and Fleece and such-like things whereof the ownership is visible whereas many are supposed to have Money which have it not but must borrow it or sell their goods at an under-rate many times to accomplish it for the payment of their Taxes Secondly these Taxes are assessed by the Neighbourhood and not upon extremity of Survey by Commissioners who many times are subject to miscarry upon grounds of private Interest or for want of due information or by making more haste than good speed These Taxes likewise were reduced to the ancient rule according to the Statute of Westminster the first And thus did this King shew himself truly Royal in demanding his Taxes upon evident grounds of State levying them with a tender hand and employing them to their right end Thirdly that which digested all and bred good bloud was in that the people had quid pro quo by the advance of Trade wherein the King shewed himself the Cape-Merchant of the world Certainly mens parts in these times were of vast reach that could manage such Wars settle such a Government and lay such a foundation of a Treasury by Trade a thing necessary to this Island next unto its own being as may appear not only in regard of the Riches of this Nation but in regard of the Strength thereof and in regard of the maintenance of the Crown the two latter of which being no other than a natural effluence of the former it will be sufficient to touch the same in order to the thing in hand Now as touching that it is evident that the riches of any Nation are supported by the Conjuncture of three regards First That the natural Commodities of the Nation may be improved Secondly That the poorer sort of people be set a work Thirdly That the value of money be rightly balanced For as on the one part though the people be never so laborious if the natural Commodities of the Island be not improved by their labour the people can never grow much richer than barely for subsistence during their labour so neither can the improvement of the natural Commodity inrich the Kingdom so long as many mouths are fed upon the main stock and waste the same by idleness and prodigality Nor though both these should concur yet cannot the Kingdom be said truely to be rich unless by intercourse and Traffick there be an emptying out of the superfluity of such Commodities by way of Barter or otherwise for such Forein Commodities whereof this Nation slandeth in most need for supply of all occasions For God hath so attempered the whole Regiment of the earth in such manner that no one Nation under Heaven can well and comfortably subsist in and by it self but all must give and receive mutual Commodity from each other otherwise superfluity would make any Commodity though in it self never so precious vile and little conducible to the inriching of the Nation Now for the compassing of all these the Wise men of these times first took into their consideration the principal Commodities of this Kingdom and because they found them impounded in the Staple they set all at liberty to buy and sell the same as they pleased And thus began a Free Trade of Wool throughout the Realm and matter for employment by every man that would but this continued not long The people soon had Commodity enough for work and Kings liked too well of the restraining of that liberty in order to their own benefit and soon found out occasions to reconcile the reason of State with their own Interests and
This reducing of Treason into a narrower ground made the Regiment of Felonies to swell A hard thing it was in a Warring time for men to conceit themselves well drest until they were compleatly armed Some used it for a Complement and amongst others honest men had as good cause to use it as some that were ill-affected had a bad and of the last sort some did aim at private revenge though many aimed against the publick quiet But however the intentions of men thus harnassed might be different the looks of them all are so sour that it is hard to know a man for Peace from a man for War. And therefore the people were now so greedy after Peace as they are ready to magnifie or multiply all postures of arm'd men into the worst fashion being well assur'd that the readiest way to keep themselves from the hurt of such men is to have none of them at all But Edward the Third had more need of them than so and will therefore allow men to ride armed but not to Troop together to rob kill or imprison any man and if any person did otherwise it should be Felony or Trespass but not High Treason All this was in favour to the people and yet it was not all for when Mercy groweth profuse it becomes Cruelty Murther is very incident to times of War yet is an Enemy to the Peace of so high a nature that though the King's Pardon may do much yet both King and People declare it an impardonable crime by the Common Law and that the King's Prerogative shall not extend so far as to pardon the same This Justice done to the party dead was a mercy to them that were alive a means to save bloud by bloudshed and not so much by the King's Grant as by his Release One thing more in these cases of bloud the people obtained of the King which they had not so much by Release as by Grant and that was the taking away of Englishire an ancient Badge of the Imperial power of the Danes over the Saxons and which had either continued through the desidiousness of the Saxons in the times of Edward the Confessor unto the Normans time or by them taken up again and continued until these times that Edward the Third was so far desirous to declare his readiness to maintain the Liberties of the people as to be willing to restore them where they failed and in particular took away the manner of presentment of Englishire blotting out the Title and Clause concerning it out of the Articles of Inquiry for the Judges Itinerant And thus whether Native or Foreiner all men are now made in death equal and one Law serves all alike Next unto bloud these times grew more sensible of Ravishments than former times had done For though they had determined a severe penalty against so foul a crime and made it in the nature of a Felony capital which was enough to have scared any man from such attempts yet for the proof of the matter in Fact much rested upon the will of the Woman which for the most part grounded upon self-respects and private prudence laboured to conceal that which could not be made whole by revealing and by after-consent skin'd over the sore as to themselves which corrupted inwardly and endangered the whole Body To cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joynture and Inheritance which otherwise had been saved to her by such compliance as after-consent unto such violations CHAP. X. Of the Course of Civil Justice during these times HOwever the course of the Law concerning matters of the Crown passed in a troubled Wave yet in matters of Common Pleas it passed in a Calm and full Channel as the Reports in Print do sufficiently witness nor was there any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the publick Policy the one touching the course of Inheritance in some particular cases the other touching pleading in the Courts of Civil Justice The first of these was occasioned from Conjuncture of Affairs the case being such that Edward the Third had now gotten himself a new Kingdom unto that of England and must look to maintain that by power which he obtained by force and conducing thereunto must have continual employment of the English in that Service as being most trusty to his Cause And that it is unreasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those foreign parts should thereby lose the benefit of Lieges in the Birth-right of their Children born in those foreign parts Upon consideration had thereof and of a former leading Opinion of the Lawyers Parliament a Declarative Law was made That all Children born without the Kings Legiance whose Father and Mother at the time of their birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and do occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveal it and the substance thereof resteth onely in this To enable the Children of English Natives born beyond the Seas not the Children of those that are of foreign birth though within the Kings Territories in those parts as the Opinion hath been Nor doth any ancient Precedent or Case warrant the same as might be at large manifested if it might conduce to the end of this Discourse And for the same cause after this Statute whenas the Commons would have had a general Naturalizing of all Infants born beyond the Sea within the Kings Segniories the same would not be granted otherwise than according to the former Statute and the Common Law. That which in the next place concerneth the manner of Expression is this That a Child is said to be born out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents born within the Kings Territories beyond the Seas because the words ensuing concerning Certification of Bastardy of such Children are That the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Territories And so the Issue will be That the Legiance of those born in those parts though they are Leiges to the King yet they
And thus the Free-men yielded up their liberty of Election to the Free-holders possibly not knowing what they did nevertheless the Parliament well knew what they did this change was no less good than great For first These times were no times for any great measure of Civility The Preface of the Statute shews That the meanest held himself as good a man as the greatest in the Country and this tended to Parties Tumults and Bloudshed Secondly Where the Multitude prevail the meaner sort are upon the upper hand and these generally ignorant cannot judge of persons nor times but being for the most part led by Faction or Affection rather than by right Understanding make their Elections and thereby the general Council of this Nation less generous and noble Thirdly There is no less equity in the change than policy For what can be more reasonable than that those men onely should have their Votes in Election of the Common-Council of the Kindom whose Estates are chargeable with the publick Taxes and Assessments and with the Wages of those persons that are chosen for the publick Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficial to the Free-men of England although perchance they considered not thereof and this will more clearly appear in the consideration of these three particulars First It abated the power of the Lords and great Men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly It rendred the Body of the People more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publick regards and under a kind of Ambition to aspire unto the degree of a Free-holder that they may be somewhat in the Commonwealth And thus leaving the meanest rank sifted to the very bran they become less considerable and more subject to the Coercive power whilst in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no less careful to maintain correspondency with the Laws than he was industrious in the attaining of his degree Thirdly But this means now the Law makes a separation of the inferiour Clergie and Cloistered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead persons in Law were nevertheless Free-men in Fact and lost not the liberty of their Birth-right by entring into Religion to become thereby either Bond or no Free Members of the people of England Lastly As a binding Plaister above the rest First a Negative Law is made that the persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the County which tacitly implies that it was too common to advance those of the meaner sort Whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudeness in account or it may be the Yeomanry grew now to feel their strength and meant not to be further Underlings to the great Men than they are to their Feathers to wear them no longer than they will make them brave Secondly the person thus agreed upon his Entertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And Lastly their persons are put under the protection of the Law in an especial manner for as their work is full of reflection so formerly they had met with many sad influences for their labour And therefore a penal Law is made against force to be made upon the persons of those Workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of Confusions yet a foundation was laid of a more uniform Government in future times than England hitherto had seen CHAP. XV. Of the Custos or Protector Regni KIngs though they have vast Dimensions yet are not infinite nor greater than the bounds of one Kingdom wherein if present they are in all places present if otherwise they are like the Sun gone down and must rule by reflexion as the Moon in the night In a mixt Commonwealth they are integral Members and therefore regularly must act Per deputatum when their persons are absent in another Legialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vice-gerents in their absence giving them several Titles and several Powers according as the necessity of Affairs required Sometimes they are called Lord Warden or Lord Keeper of the Kingdom and have therewith the gegeral power of a King as it was with John Warren Earl of Surrey appointed thereunto by Edward the First who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Foreigner had the like power given him by Edward the Second over England to the reproach of the English Nobility which also they revenged afterward Sometimes these Vice-gerents are called Lieutenants which seemeth to confer onely the King's power in the Militia as a Lieutenant general in an Army And thus Richard the Second made Edmund Duke of York his Lieutenant of the Kingdom of England to oppose the entry of the Duke of Hertford afterwards called Henry the Fourth into England during the King's absence in Ireland And in the mean while the other part of the Royalty which concerned the Revenues of the Crown was betrusted to the Earl of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say The King put his Kingdom to farm But more ordinarily the Kings power was delegated unto one under both the Titles of Lord Guardian of the Kingdom and Lieutenant within the same such was the Title of Henry Lacy Earl of Lincoln and of Gilbert de Clare Earl of Gloucester and of Audomar de Valentia Earl of Pembrooke all of them at several times so constituted by Edward the Second as by the Patent-Rolls appeareth So likewise did Edward the Third make his Brother John of Eltham twice and the Black Prince thrice and Lionel Duke of Clarence and his Brother Thomas each of them once in the several passages of Edward the Third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his Reign concerning which see the Patent-Rolls of those years And Henry the Fifth gave likewise the same Title and Authority to the Duke of Bedford upon the King's Voyage into France and afterward that Duke being sent over to second the King
suit and according to the course of the Admiralty by complaint saving matters of death to the cognizance of the Admiral But this was soon found defective for Justice done in the dark is many times more respective and less respected and therefore within a few years it is provided That Offenders against the Kings Truce upon the Sea or in any of the Ports shall be proceeded against in the Chancery before the Chancellor who hath power given him of calling to his assistance some of the Judges to execute the Statute of 2 H. 5. foregoing by a handsome contrivance For that Statute was once and again suspended for the rigour that was used by the former Conservators who being borderers upon the Sea for their own peace spared as few as they could which had so discouraged the Seamen that the Kingdom had been almost utterly bereaved of its strength at Sea. Nevertheless all this while these Laws were but penal and not remedial for the parties wronged and therefore another Law is made to give the Chancellor and Judges power to make restitution and reparation Thirdly The Chancery gained upon the Ecclesiastical Court. For whereas by the Canon the Church-men were to be judged by their Superiours according to Ecclesiastical and Ordinary Jurisdiction and the iniquity of the times was again returned to that height that Parents could not enjoy their own Children but the little ones were allured stoln away and detained in Cloisters nor did the Church-men afford remedy in such cases A Law was made that upon complaint hereof made to the Chancellor the Provincial should be by him sent for and punished according to his discretion Lastly The Chancery encroached upon the Common Law For whereas the stirs between the two Houses of York and Lancaster began to rise men made their dwellings in places of security and strength Women likewise and other persons flying thither for refuge especially such of them as had most to lose these were contrary to the Law of common honesty urged to engage their Estates unto the desires of such to whom they had fled for refuge and sometimes compelled to marry before they could gain their liberty It was now provided that all such complaints should be heard and determined by the Chancellor Secondly As touching the Ministerial power of the Chancery this likewise was enlarged in making of Process to compel appearance in cases of forcible Entries Murders Manslaughters Robberies Batteries Assemblies in nature of Insurrections Riots and Plunder committed by Servants upon their Masters goods before their Masters death and suchlike offences now grown common and in need of sudden remedy Thus as the work and power of the Chancery grew so did the place and person of the Chancellor grow more considerable raised now from being the Kings Secretary for no better was he in former times to be the Kingdoms Judge and of such trust that although the King might make election of his own Secretary yet the Parliament would first know and allow him that must be trusted with the power over the Estates of so many of the people And therefore did in these times both place and displace him as they saw expedient In a word he is become the Kingdoms Darling and might be more bold with the Common Law than any of his Peers CHAP. XIX Of the Courts of Crown-Pleas and Common Law. AS the Chancery on the one side did swell and increase so was the Kings-bench in an ebb the Council-Table in the Star-Chamber on the one side and the Itinerant-Courts in the Country intercepted and drew away much to their own shares making themselves fat the Kings-bench lean and the Rural Courts for Crown-Pleas almost to starve The Crown-Pleas formerly had been determinable in the Kings-bench Gaol-delivery Oyer and Terminer and many of them by Justices of the Peace Coroners and Sheriff The Gaol-delivery was afterwards united to the Judges of Assize and if one of them were a Clergy-man then to the other and chief men of the County This was useful for the Publick but not beneficial for some men and therefore they laboured for Commissions especially directed to parties that they thought would partake but these were found soon to be dangerous soon taken away and the Gaol delivery restored to the Judges of Assize as formerly The Commissions of Oyer and Terminer were sued forth upon extraordinary Emergencies and Offences wherein the State was much concerned for speedy Execution In former times both these and Gaol-deliveries were but rarely had and then granted unto some that perchance knew more of the Case than before-hand was meet to be known Edward the Third amended this Errour and ordered that no Commissions of Oyer and Terminer should issue forth but unto Commissioners named by the Court and not by the party complaining But the Judges of Assize are now on the growing hand both for Honour Use and Power the rather because their persons are of high repute in the Benches at Westminster which are the Master-pieces of Judicature and their Iters are constant and ordinary Nevertheless the Judges of Assize though they have the Gaol-delivery annexed to them yet have they not that absolute power of the Kings-bench but are still under the rule of their Commission which is not alterable but Parliament and which by it was altered by way of adding new powers as new crimes arose that required the eye of the State to provide And so the Judges of Assize by degrees grew to be the ordinary Administrators of Justice throughout the Kingdom yet holding still forth to them a limited power to hear and determine in some Cases but in others onely to enquire and certifie as in the case of false Returns by the Sheriff of persons elected for the Parliament And also in cases concerning the Statutes of Labourers and unlawful Games and Pastimes in which case the Certificate is to be made to the Chancellor And also in cases concerning Liveries contrary to the Statutes wherein the Certificate is to be made to the Kings-bench which power in this last case continued in that manner by the space of thirty years and then by another Statute they had the power to determine such cases before themselves In like manner they had power to hear and determine cases of falshood in counterfeiting and corrupting of Money by washing clipping c. And also defaults committed by Sheriffs Bayliffs and their Officers against the Statutes of Forcible Entries and of wearing of Liveries as aforesaid These were signs of much confidence and trust in them and yet notwithstanding not in these nor in these were the Penalties by Fine left to the Arbitry of the Judges no nor to the Justices of the Kings-bench but were by the very Letter of the Law determined Nor would the Parliament trust these men with doing Justice in the cases aforesaid in their own Counties where they dwelled nor did it think expedient to
allow the Chief Justice of the King-bench unto that service in any of them all but onely once in the County of Lancaster and then onely at the King's pleasure Otherwise it was to be as was used by the space of one hundred years foregoing possibly because his power was too great to be trusted amongst the people Lastly the Judges of Nisi Prius were anciently made by Edward the First by whom also the Assizes were settled at certain times of the year and afterwards by the Statute of York the Nisi Prius in smaller cases was granted before one Justice of the Bench where the Plea dependeth and one substantial man of the County but those of greater concernment were to be had before two Justices of that Bench or in case they were wanting then before Justices of the other Bench or in default of them before the chief Baron if he were a man of Law and in default of that before the Judges of Assize Therefore in those days the Justices of the Benches in their Iters in the Counties were divided in their power some being for Assizes others for Nisi Prius and in some times and cases some were for both For in those times of Edward the Third Judges of Assize had power to enquire in some matters that concerned the Crown or to try Nisi Prius Nor were these powers united till in Henry the Sixth's time Justices of Nisi Prius had the power of Oyer and Terminer annexed to them in all cases of Felony and Treason What was formerly provided by Edward the Third and Richard the Second for instruction to these Judges and to bind them thereto by solemn Oath I shall not particularly mention but shall leave the consideration of the Original of the whole Judicature of this Nation unto the Readers observation upon the premises CHAP. XX. Concerning Sheriffs HEnry the Fourth after a small rest in his Throne though he always sate loose sought after the civil Peace as the corner-stone of his subsistence and that by a way of Justice which found more acceptance with the Vulgar than the common Education of the greater number in these times could promise for the worst of men cannot endure to suffer Injustice though themselves will do it Now because where Kings are reputed to be the Fountain and Life of Justice Sheriffs may be reputed to be the breath thereof and by their Irregularities do render the Government of the King as loathsome as unsavoury breath doth the person whose it is Therefore Henry the Fourth chose rather to be a loser in his Farmâ—â—ts of the Sheriff-wicks than to occasion the Sheriffs to save their bargains by oppression And to this end he took away the course of farming of Sheriff-wicks and made the Sheriffs bare accountants for the Annual profits and as touching the casual profits the Sheriff discharged himself upon Oath This was a good security to the King but yet the People was not herewith satisfied For though the Sheriffs might not take to Farm yet what they had they might let to Farm and then wherein are the people the better for these Laws seeing it is all one for them to be oppressed by the Sheriff immediately as by the Proxy For preventing of this inconvenience another Law is made That the Sheriff shall not let his Bailywick to Farm nor be Non-resident and to this he must bind himself by Oath So as now the Sheriff is double girt and may be fairly ridden without danger to the King or People But men ride Horses for ease and pleasure and he that must bend his mind always to watch his Horses motion will chuse rather to go on foot And therefore Henry the Fifth renewed the Law of Richard the Second that Sheriffs shall be but for one year and then not to be chosen again nor serve for three years next following This Order continued for the space of eight years within which time War and Pestilence had consumed so many of the richer sort of people that a Dispensation is granted that Sheriffs may continue in their places for four years And it was above twenty years after e're the Stock was recruited again after which time the substance of the former Statutes of Edward the Third Richard the Second and 1 Henry the Fifth is revived again with a penalty upon the Sheriff his Deputy or Clerk that shall execute that place above one year So the custom of holding that Office ten or twelve years by occasion of the Dispensation for four years was laid aside But the Cure would never be perfect so long as Sheriffs held by Inheritance for it was easie to find new Deputies but not to lay down old Customs nor could it be lasting unless the penalties also had been annexed to the particular Crimes For a Sheriff before he is a year old by experience formerly had becomes too cunning for all these Laws and therefore Laws are made also against the ordinary corruption of these places such as are extorting of Fees false making of Juries false returns of Writs c. and damages in such cases given to the party wronged and when all is done he is not trusted with taking of Indictments Thus with much ado a Sheriff is made a tolerable Officer and his place by degrees so hedged in that what was in former times hard to pluck up is now become hard to set CHAP. XXI Of Justices and Laws concerning the Peace THE faint Title of Henry the Fourth to the Crown made him ever tender of the Civil Peace without breach whereof he was sure to be quiet in the Throne He undertook not this work by any superlative power from and by himself but useth the help of the Parliament and Laws wherein he was industrious pretending love of Unity amongst his people which nevertheless he liked not unless in order to quiet between himself and them The former way of Justices of Peace he followed close reducing the persons to their ancient qualifications The most sufficient persons Inhabitants in the County worth at least twenty pound yearly unless they be Lawyers or such as are Justices in Corporations Nor is the King troubled or trusted with the naming or electing of these men but the Chancellor or the Kings Council so as now by Law the King can neither be Justice nor make Justice Jure proprio but as his interest with the Council is more or less prevalent and that power that first gave it to the Crown the same power took it away or imparted and placed it else where But as touching the Work or Power of the Justices themselves it grew exceedingly much whereof was only of enquiry and to make Certificates as of Heresie Treason Falshood of Sheriffs c. But more of Oyer and Terminer as in case of Watches deceitfulness in Trades as of making Arrow-heads guilding of Metal
tanning of Leather imbasing of Silver selling of Waxen Images and Pictures c. For the superstition of these times was such as these petty Gods were not set at so high a price by the Seller but a higher price by the Buyer The Parliament therefore set a true value of them viz. For the Wax so much as the Wax is worth by weight and but four pence for the godhead So as it seems the Parliament was not very superstitious in their House whatever they were at Church Furthermore the Justices of the Peace had power to punish deceit in Measures Weights Forcible Entries and Detainers In many of which cases the penalty being Fine and Imprisonment became a snare to many of the Justices especially such as were of the greater and higher rank who having Castles of their own under colour of Justice imprisoned Delinquents in their own Castles and ransomed them at their own pleasure which proved a great oppression to the people and occasioned a Law that no Justice should commit any Delinquent to other than the County-Gaol saving Franchises to the Lords Those times are happy when Justice waits not altogether at Court but grows up in the Fields and Justices of Peace as the Kings Arms upon the Royal Mace are terrible onely to the bad and not as they are pictured before an Ale-house-door to invite men to transgress The Laws for the preservation of the peace concern either punishment of Crimes committed or prevention of them from being committed There is a succession of crimes as of Men and Ages because the Scripture tells us that the hearts of all are fashioned alike yet it is with generations as with men some incline to some crimes more than other and that is the reason that the title Treason sometimes is set forth in Folio sometimes in a lesser Volume It is evident is Story that the violent times of Richard the Second had raised the value of that amongst other offences above measure not long before his time his Father had reduced that wild notion of Treason to a certain rule that formerly wandred in a Wilderness of opinions But Henry the Fourth either to save his own stake or to take the people or both reduced it again to the Statute-rule of Edward the Third and made void that Statute of his Predecessors which had made a former Act of Parliament and all the service thereby done Treason The Dimensions of Treason thus clearly limned and declared taught ill-disposed minds to keep out of the Letter and yet to be bold with the Scene Counterfeit Money they durst not yet to diminish the same they thought came not within the Circle and so it became a common grievance till a Law was made That all purposed impairing of Money should be Treason And so the Parliament held forth to all men that they had a power to declare Treason without the bounds of the Statute of Edward the Third The like power it held forth in the time of Henry the Sixth for men knew that Burglary and Robbery were mortal crimes they would no more of that now they devise a way to spoil and prey for themselves and yet neither to rob nor break House To this end they would scatter little Scrolls in writing requiring the party that they intended to prey upon to leave so much money upon such a day at such a place and this was Sub poena of burning the parties House and Goods which many times did ensue upon default made This practice was at once made Treason to prevent the growth of such an evil And the like was done with Robberies and Manslaughters contrary to the Kings Truce and safe-conduct As many or more new Felonies were also now created One was the cutting out of mens Tongues and plucking out of Eyes a strange cruelty And that shewed the extream savageness of those times so much the more intolerable by how much the poor tortured creature could hardly be either Eye or Ear-Witness of the truth of his own wrong A second Felony was the customary of carrying of Wool or Wool-fells out of the Realm to other places except Calis Another Felony concerneth Souldiers which I refer over to the next Chapter The last was Servants plundering their Masters Goods and absenting themselves if upon Proclamation made they appear not this was also made Felony In the next place as touching Forcible Entries and Riots the remedies so often inculcated and new dressed shew plainly the nature of the times These kind of crimes commonly are as the light Skirmishes in the beginning of a War and follow in the Conclusion also as the faintings of a Battle fought till both sides be weary I shall not enter into each particular Statute divers of them being little other than as asseverations annexed to a Sentence to add credit and stir up minding in men that otherwise would soon forget what is said or done The remedies formerly propounded are now resined and made more effectual First In regard of speed which is as necessary in these forces as the stopping of the breaches of Waters in the first act and therefore one Justice of the Peace may proceed upon a holder by force or breaker of the Peace with a Continuando but Riots are looked upon as more dangerous and the first opposition had need be more stiff lest being uneffectual it aggravate the violence and therefore it is required that two Justices and the Sheriff should joyn in the work to carry on the work with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Council or to the Kings Bench if Traverse be made So as though the power of the County be annexed to the Sheriff Jure ordinario to maintain the Peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintain and recover the Peace when it is broken shews more Power but to prevent the breach shews more Wisdom and therefore to all the rest the Wisdom of these Times provideth carefully First For Guards and Watches according to the Statute at Wint. and committed the care thereof to the Justices of the Peace And Secondly Against the gendring of parties for it is commonly seen that such as the admired for excellencies of person are so far idolized of some as that their Gestures Actions and Opinions are observed Tokens of favour though never so small are desired from such and the Idol likes it well gives Points Ribbons it may be Hats and with these men are soon gained to be Servants in the fashion and not long after to be Servants in Action be it War or Treason or any other way This manner of cheat the former times had been too well acquainted with Knights and Esquires are not to be feared in times where the word Lord carries the wonderment away their offences against the Statutes of
otherwise than in especial Cases And then the conclusion will be that if the King may not give Liveries to the prejudice of the Peace then may he much less break the Peace at his pleasure or levie Men Arms and War when he shall think most meet Take then away from the King absolute power to compel men to take up Arms otherwise than in case of Foreign Invasion power to compel men to go out of their Counties to War power to charge men for maintenance of the Wars power to make them find Arms at his pleasure and lastly power to break the Peace or do ought that may tend thereto and certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array entitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a Precedent or Rule for the future yet will it not follow that Henry the Fourth had or any Successor of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall think meet First As touching the amendment of the Commission it was done upon complaint made by the Commons as a grievance that such Commissions had issued forth as had been grievous hurtful and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges And if it be true that the amendments were in the material clauses as it is granted then it seemeth that formerly a greater power was exercised than by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no grievance to the Subject Secondly If the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not go and then it will also follow that the power of Array is not originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in material parts of the Commission and the powers in execution there whereof no complaint of grievance had been made The issue then is If the King had an Universal power in the Array the Parliament likewise had a general liberty without any restriction to correct that power Lastly Suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings power is established yet can it not be concluded that this power is originally or absolutely in the King. It is not absolutely in him because it is limited in these particulars First It is not continual because it is onely in case of eminent danger Secondly It is not general upon all occasions but onely in cases of a Foreign and sudden Invasion and attempts Thirdly The powers are not undefined but circumscribed 1. To Array such as are armed so as they cannot assess Arms upon such 2. To compel those of able Bodies and Estates to be armed and those of able Estates and not able Bodies to arm such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they strain themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remedial in particular cases yet do I not agree to their Glosses but leave them to the debate already published concerning the same Secondly As this power was not absolutely in the Kings so was it not originally from themselves because they had not the Legislative power concerning the same but the same was ever and yet is in the Parliament Hereof I shall note onely three particular instances First The Militia is a posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprizal granted to such of the people of this Nation as are pillaged by Sea by such as have the King's Conduct or publick Truce And by this Law the party pillaged had power to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellour had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Foreigners were become bold to transgress and the English fearful in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdom was much impaired Nor is the equity of this Law to be questioned for if the Magistrate upon complaint made grants not relief the offence becomes publick and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for relief at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a general War. Two other instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers pay Viz. That Captains shall not abate the Souldiers Wages but for their Clothing under peril of Fine to the King. The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their service be expired unless in case of sickness or other good cause testified and allowed by the Captain and such as shall do otherwise shall suffer as Felons Which Laws could not have holden in force had they not been made by Parliament in respect that the penalties concern the Estates and Lives of men which are not to be invaded but by the Law of the Land. So as both Captains and Souldiers as touching the Legislative power are not under the King in his personal capacity but under the Law of the Parliament Lastly As the rule of War was under the Legislative power of the Parliament so was the rule of
Sixth was in view and the minds of men left unassured neither trusting much to Edward the Fourth nor he to them And after that Henry the Sixth was gone out of the way Edward the Fourth could not readily change his posture used Arguments of force and power and for the most part looked like a man in Arms with his hand on his Sword ready to draw upon the next man that stands in his way Thus are the people partly driven and partly drawn into an Oath of Allegiance unto Edward the Fourth under peril of Attainder and the Parliament assured unto him once more For immediately upon the departure of Edward the Fourth beyond Sea after Ten years of his Reign the Parliament never staying for the issue of Providence declared the Throne void of Edward the Fourth and Henry the Sixth King. The Judges likewise of the Courts of Westminster determined the same thing as may appear by the Law-Reports of those times in Print wherein reattachments were often granted by them upon discontinuance of Process by this Demise of Edward the Fourth And thus Henry the Sixth is once more King for six Months viz. from October to April at which time the Ballance turns Edward the Fourth returns gets into the Throne Henry the Sixth is again Dethroned all things are as they were and all confirmed by Act of Parliament For that Body is ever wise enough to side with Power rather than to spend much time upon fruitless Orders and Votes that will pierce no Armour and therefore like the times must needs be subject to fits of distemper at the coming in of every Tide and did build and pull down enact and disenact turn and return the English Crown from York to Lancaster and back again and in conclusion for some time did do little but undo Nor can they be justly censured herein for Councils of men are not ordained to hinder divine Providence or over-rule Fate but to foresee and close with Occasions in the most advantageous way for the publick good and when both Winds and Currents are uncertain to ride at flote till they can discern the most commodious Haven to Winter in To impute therefore fault unto the Parliament in such Cases for want of Uniformity and Immutability of Councils is somewhat like the Notion that Batchelors conceit of Wives they would have but they do not know what other 〈◊〉 an Idea of their own fancy Now if it be enquired which course prevailed in order either to the Kings Royalty or the peoples Liberty I shall answer Neither of these but the House of York prevailed to hold the Crown and might have advanced the Authority thereof had they not fall'n out amongst themselves for the spoil and Edward the Fourth was not altogether disposed thereto The success that he had in the Field and his Souldiery made him look big like a King of the greater size but Kings sleep not securely upon such Pillows When the Militia is on Horseback it is as ready to be a Guard upon the King as for him and when it is most sober not so easily governed as a Commonwealth And therefore Edward the Fourth now in Arms though he found it a hard Notion to maintain the peoples Liberty where no man is free from the Souldier yet he enclined thereto We read of a multitude of Taxations of all sorts and of Benevolences the worst of all those sorts For Souldiers must have money or if not they will have it but the King would not force things so far as his power could reach he will have Money but it shall be by order of the Parliament He might have pretended much upon the Commission of Array yet did it not but chose rather to be Lord of the Seas And because it was too great a Farm for his private Purse he prays aid of the Parliament by the way of Tumage and Poundage which was in demand nine years before the Parliament granted it And when it was granted it was with such restrictions that it is evident the King preferred the right of the Parliament therein above his private honour Secondly Titles of Honour are but windy Notions and every one knows what claim is made by Kings to have the sole interest in conferring the same This Edward the Fourth neglected so far as he interested the Parliament both in the conferring of them and resuming the same Thirdly The course of Trade was now more especially looked to not by the King and Privy Council but by the Parliament And because it was much decayed partly by reason of the ill government thereof and partly by the excessive lavishness of these times many Laws are made for remedy of both And first the Staple was setled sometimes at Calis alone sometimes at it and Middleborough and by this means England gained Trade from both Nations but the principal thanks is to be given to the interest between the King and the House of Burgundy Then course is taken for the bringing of the Staple Commodities onely to those places and the return to be made in Money and not Commodity by exchange Then for the well making of Staple-Manufactures and restraining Importation of Foreign Manufactures of such kinds Then against transporting of English Coyn and importing of Foreign Coyn other than Bullion And as touching the second grievance it seems gallantry or vanity of Apparel was a sore Disease of these times which were become times of Fashions and wherein the King led the way by his own example For he desired to be brave and that he might be more brave he passed Laws that the people should be less brave assessing a sort of Apparel for every degree and therein stooped so low as to define the fashions of their very shoes Fourthly The Parliament retained their ancient right of reducing the course of Judicature For whereas Sheriffs had hitherto holden their course of Trial of the moaner sort of Felonies and Trespasses and Offences determinable onely by Imprisonment or Fines and Amerciaments whereby mens Estates did lie under the continual pillage of these covetous and extorting Officers It was established by the Parliament that these men should have for the future only power of enquiry and to certifie at the next Sessions and there the Trial to be and Fines and Amerciaments to be set Taxed and Estreated unto the Exechequer and from thence to be levied and thereof the Sheriff give account This was a great security to the peoples Estates but gave them not a full remedy For though the Trial was now more fair yet these Officers were Judges of suspicion and had still power upon suspicion to imprison their persons and seize their Estates under colour to save them for the King in case Conviction followed For remedy hereof the Justices of the Peace have now power given them to Bail in Case of light suspicion and it is further declared that no mans Estate shall be first
them to put up beyond his place and to bid adieu to the advice of all the rest but he gets the uppermost seat in the King's Head makes a Foot-stool of the King's Heart and then it is two to one that the people in such cases must bear the greater burthen For whoever first said it he said most true That Prerogative in the hand of a King is a Scepter of Gold but in the hand of a Subject it is a Rod of Iron The Reign of this King Henry the Eighth serves us with much experience of this kind for if the consideration of the Affairs of this Government should be divided the same would be double the one under the Regiment of Cardinal Wolsey the other of the King by Cromwel Cranmer Gardiner and others interchangeably I call that of Wolsey a Regiment for he was in the nature or condition of a Pro-Rex during the Kings Juvenility This fortune thus super-induced upon a Cardinal raised from mean degree to be Legate à Latere courted by Foreign Princes slattered by the Emperour with Titles of Son and Cousin made him lead a dance that the King however active he was is put to his career to hold him company which the King perceiving tripped up his heels and left the Archbishop the Chancellour the Cardinal the Legate and many more with him lying on the ground No pride like to that of the Clergie whose parts are more sublime and apprehensions clear If God addeth not a superiour Work to rule over all a little honour will blow up all with powder The King having thus matched the Cardinal forgot his former natural pace and once in a heat could cool no more till death cooled him He knew by experience that the Cardinal could over-awe the people why should not the King do as much if the Lords stooped to the Cardinal why not much rather to the King The Cardinal pulled down reared up turned square to round why should he be less than his Subjects Such conceits as these soon wound up the Kings mind to that height that it is death to him to stoop one inch lower to more moderate advice though he loved their persons never so well but all must be content with the weight of his arm though it were no small one and yet in point of Religion affairs tended to a kind of Reformation all this while CHAP. XXVII Of the State of the Crown THat the Crown of England now abounded more in Flowers than Crosses the Face of Story doth hold forth to ordinary Observation and yet few are satisfied either in the true nature of the particular advantages or in the manner how they were obtained or in the continuance I must therefore make a little stop upon them because in the true discerning of them the discovery of the nature of the Government in latter days doth much depend Hitherto the Crown came short of absolute power over the people upon two grounds in observation one relating to the Clergie the other to the Laity The Church-men were heretofore under a Foreign power and a Foreign Law against which Kings durst not deeply engage either not being assured of their own Title or employed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Pope's Curse But the Laity were under another Law and such an one as by clear and unquestionable Custom had established bounds between the way of Kings and the Rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were morally enclined or in others by a kind of fear of raising up Earthquakes from beneath which commonly do overthrow high Towers sooner than Winds from above But now such interests are laid aside fast asleep by two Kings Whereof one cared not much for Fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Model in some particulars It was not rich enough nor well poised to his mind which ever was not to be poor but towards his latter time to be exceeding rich as supposing that to be the onely way to be more desirable to Friends formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire For by mistaking the right way it made a rich King but not a rich Crown He delighted more in the riches of his People than in a rich People And this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their Purses but are loth it should prove customary lest they should lose their Common Right They therefore chose rather to give him power by Act of Parliament to revoke Letters-Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossess his own than possess theirs Many Penal Laws likewise of a limited and Temporary regard are made and as Cheese after a full Dinner they close up all with Subsidies For it was evident to all men that the Royal mind of the King served no further than to take what was given provided that the People would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the point of Allegiance wherein both parts carry themselves so cunningly as it is hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whilst the People did onely lie at their close guard The whole project consisted in this to gain a more absolute Allegiance from the English to their King. And because this is exemplified partly in War and partly in Peace that part which concerneth War will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32 Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Laws and of Judicature according to those Laws As touching the making of Laws the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any positive way yet his actions declare that his heart was that way For being beset with troubles he could often fancy dangers and arm himself then call a Parliament who were wise enough to grant as readily as he asked rather than to be compelled thereto So he had Laws made according to his own Will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himself though they did not onely represent his person but his mind
than a power of Non obstante in the point of obedience to the Canon-Law which by a Statute in Henry the Eighth's time is declared no Law. But let this pass as a Mole in this fair face of Church-government The Prelates are now become of the Vicinage Probi legales homines they have their Jurisdiction by Law established what they lose in breadth they gain in height and goodness of their Foundation Yet their Attire looks ill-favourably in Queen Maries eye she will have it of the old cut again and though Cardinal Pool was well seen in the Roman fashion yet when he had done all he did no more than shape a Garment to serve the present Interlude neither fit to the body nor easie to be worn and therefore after four or five turns upon the Stage it is thrown away Nevertheless during the time that England was thus dancing the Italian measure Prelacy in England held its own Domestick garb so well that neither Poole being of English bloud not much distant from the Crown and then also holding the Chair Legatine as little inferiour to the Throne would not impose too much nor Queen Mary a woman of a stout Spirit yield farther than she liked By means whereof the Prelacie looking no more to Rome than the power in Appeals and therein little more than the bare Title played Rex all the while with the people under colour of Heresie and the Canon-Law which now was again made their Rule And thus as touching their Election and Jurisdiction they were as before For Queen Mary did nothing but by single Repeal But Queen Elizabeth being true English both by Father and Mother liking not this retreat faced about routed the Roman fashion out of fashion put Prelacie to its close guard and received it upon capitulation not onely to mercy but favour and so it became her Vicar to exercise her Ecclesiastical Jurisdiction per saltum For it is hard to find by what steps they gained this pitch Henry the Eighth was Supream Head by submission of the Clergie by Resumption and by Act of Parliament and as such the power of Bishops formerly derived from Rome ceased and Henry the Eighth after restored it anew and setled the same by several Acts of Parliament which Edward the Sixth confirmed with divers additional Acts of further benefit to them as hath been already noted But Queen Mary altered all by repeal of the former Laws and so left all in Remitter as before the alteration by Henry the Eighth and did neither give or grant any Jurisdiction to the Pope Last of all comes Queen Elizabeth and by Repeal and Resumption possessed her self of Jurisdiction Ecclesiastical and granted Election of Bishops by Conge d'eslire but never granted to the Bishops Ordinary Jurisdiction by any express Act other than permission of them to continue in their former course notwithstanding that the foundation of their Jurisdiction had been altered twice and so it will be difficult for it to hold by Prescription or Custom or any other way than by a kind of Divine Right which began to be pretended yet to this day could never be made evident to the World. Whatever the ground was the thing is plain that Prelacie in Queen Elizabeths time had this honour allowed thereunto that it was upholden by Election from Ecclesiastical men and held its Jurisdiction as from it self and in the name of Bishop as Ordinary and the power of Excommunication by a saving in the Statute-law and not by express Donation notwithstanding the late Precedent in the time of Edward the Sixth to the contrary Secondly The Rule of this Jurisdiction was no less at large for the Canon-Law was determined by Henry the Eighth and Edward the Sixth and was not revived by any Act of Parliament by Queen Mary or Queen Elizabeth who neither pursued the Medium of the Thirty two Commissioners nor setled other rule but a few Canons which after some time by Queen Elizabeth and her Clergie were agreed upon but never confirmed by Act of Parliament And so could never bind the Subject and which in general set forth a kind of Form of Churchâ— policy yet no fashion of Jurisdiction or rule of proceedings in the Ecclesiastical Courts but in such cases left them to the Canon-Law which was hidden in their own breasts and could be make strait or wide as they pleased Thirdly theâ— Censures now grew more sharp for whereas at the utmost formerly they â—â—uld do no more but imprison or deliver over to the Secular Power and that onely in case of Heresie and yet had scarce ground of Law for what they did now they have an additional power to fine and imprison in Cases of inferiour nature and so can reach all that a man hath even to his skin Nevertheless this was not annexed unto the ordinary Jurisdiction but given by extraordinary Commission called the High Commission wherein though many others were named yet the Clergie and Canonists did the work the rest being but in nature of a reserve to them in case they were put to the rout The power of these Commissioners was to execute the Queens Jurisdiction in Causes Ecclesiastical so as the Bishops are doubly interested in this work one way by supposed Commission â—rom God as Ordinaries within their own Diocess onely and so may proceed to Excommunication or Deprivation the other way by Commission from the Queen as Members of the High Commission for so many of them were such as the Crown would please and so they might fine and imprison They might and did I say by their Commission but not by the Statute that gives authority thereto and therefore cannot be said to be done legally Fourthly besides the contracted power of making Canons in the Convocation by the power of the Royal Assent the Queen had a power of making Laws by their consent in matters of the criminal part of the Worship of God. This might be tolerable for the Life of the one Queen who might be presumed would if she lived a few years settle all things but to subject the Consciences of all the people to the opinion of one Metropolitan that might opinionate strange things and that the Successors of the Queen should usurp this as a Flower of the Crown to determine what is for Gods glory in such cases and to be always altering and patching up a Form as he and his Metropolitan or one of them alone shall think meet is neither commendable upon any grounds of Divinity or humane Policy Now amidst the flourishing Estate of Prelacy it is no wonder if the Churches be no gainers but like Plants spending their Natures in luxuriant Branches either are over-turned by the next blast of wind or do wither upon the least change of Skie That the whole ordering of the Church-Affairs rested originally in the Parliament no man can question considering whatever the Queen did or had therein was from the power of Acts of Parliament And that the
and imprisoned Before this Law this crime was but finable unless the fact was committed upon a Virgin for then the member was lost And this was the Saxons Law but the Normans inflicted the loss of the member upon all Delinquents in any Rape Nor was this made Felony by any Law or Custom that I can finde till about these days It is true that Canutus punished it capitis aestimatione by way of compensation which rather gives a rule of damages to the party wronged than importeth a punishment inflicted for an offence done against the Crown as if it were thereby made capital But for the more certainty of the penalty another Law provideth that if the Rape be committed without the Womans consent subsequent she may have an Appeal of Rape And though a consent be subsequent yet the Delinquent upon indictment found shall suffer death as in the case of Appeal But if a Wife be carried away with the goods of her Husband besides Action of the party the King shall have a fine If the Wife elopeth she shall lose her Dower if she be not reconciled before her Husband's death All which now-recited Provisoes are comprehended together in one Chapter and yet the Chapter is partee per fess French and Latine So far thereof as concerneth death was written in French being the most known Language to the great men in general many of whom were French by reason of the interest that Henry the Third had with France in his late Wars against the Barons It was therefore published by way of Caveat that no person that understood French might plead ignorance of the Law that concerned their lives The residue of that Chapter was written in Latine as all the other Laws of that Parliament were upon grounds formerly in this discourse noted One Proviso more remaineth which is also comprehended in the same Chapter with the former viz. Any person that shall carry away a Nun from her house shall suffer imprisonment for three years and render damages to the house This crime was formerly onely inwombed in the Canon-Law and now born and brought forth into the condition of a Statute-Law rather to vindicate the right of the Freemen than in any respect had to the Clergie who had been very bold with the liberty of the Freemen in this matter For Archbishop Peckham not a year before the making of this Law for this offence had excommunicated Sir Osborn Gifford nor could he get absolution but upon his Penance First he was disciplin'd with rods three times once in the open Church at Wilton then in the Market-place at Shaftsbury and lastly in the publick Church there Then he must fast divers moneths Lastly he must be disrobed of all Military habiliments viz. Guilt Spurs Sword Saddle golden Trappings and to use no brave garments but russet with Lamb and Sheep-skins to use no Shirit nor take up his Order again until he had spent three years Pilgrimage in the Holy Land and unto this Penance the Knight by Oath bound himself A strange power and to repress which it was time for the people to look about them and rather to punish Delinquents themselves than to leave it to the will of such men as never had enough Concealment or neglect of apprehending of Felons punished by Fine and Imprisonment In those ancient times pursuits of Felons with Hue and Cry were made by Lords of Manors Bailiffs of Liberties Sheriffs and Coroners whereas now they are made by Constables See more in the Chapter of Peace Escapes also were punished with Fine and Imprisonment and in some places the Lord had the Fine in other places the Sheriff and in some cases the King yet in no case was any Fine assessed or taken till the Trial before the Justices Persons defamed for Felony not submitting to Trial by Law shall be committed to close and hard Imprisonment It hath been accounted an extream construction of this Law and questionless so it is that this Law should warrant that punishment of pressing to death which hath been of later times more constantly used than former times ever knew of for though it be granted that some trick of torture was sometimes used even before the Normans times and so might now and then leave some few examples after the Norman times yet did the Law never patronize such courses especially if the death of the party suspected ensued thereupon but accounted it Manslaughter And the end of this Law was not to put a man to death but to urge him to confess and so Briton saith Such as will not submit to Trial shall be put to Penance till he shall pray to be admitted thereunto and therefore the Penance then used was such as did not necessarily infer death nor was it a final Judgement in the Trial but onely a means thereto and therefore it might rather consist in denial of conveniencies than inflicting of pain Now in what cases it was used may be understood from the manner of the Indictments in those days whereof besides Appeals by the party some were of particular fact done others onely of a Fame and it may be conceived that the course in the second was that if a man would not submit but would stand mute he was put to this kind of Imprisonment for the discovering Law was by Henry the Third taken away But if the Delinquent was positively accused of a Felony and thereupon indicted by a witness of the Fact and then if the Delinquent would not submit to his Trial by Law in such case the final Judgement was to die Onere fame c. because in the one was a Fact affirmed against him by a Witness and in the other onely a Fame or suspicion which is not pregnant against the life of a man. But this manner of Indictment being now laid aside and all proceedings being upon a Fact affirmed against the party I conceive this Law of no use at all in these days Bail shall not be allowed to Outlaws fore-jured Thieves taken in the act notorious Thieves appealed persons burners of Houses breakers of Prison false Coyners counterfeiters of the Broad-seal prisoners upon excommunication open Malefactors and Traitors against the King. The six first are in nature of persons attainted either upon their own confession or such manifest Evidence as in common reason cannot be gainsaid all which were before this Law under bail yea the last of all although the most heinous 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 bail for whoso makes no Conscience of breaking the Prison his credit will little avail Yet it must be acknowledged that the Law imprisoned few without bail in those foregoing times but in case of Felony or Execution but afterward the cases of commitment being ordinary even in matters of mean process and because mens credits
waxing weak by the weakness of their Estates now wasted by the Civil Wars therefore in Edward the Second's time a Law was made to restrain the Felony in such cases onely to the breach of Prison by such as were committed for Felony And as touching Imprisonment upon Excommunication it is manifest that within five years before the making of this Law it was complained that such were set at liberty by the King 's Writ de homine replegiando without the Bishop's consent But now the Clergie had gotten the day of the Law which did much decline from that guard of imprisonment but hated perpetual imprisonment Nor was this complaint grounded upon any other Law than that of the Canon for the Common Law ever held the supreme cognizance of Excommunication within its own power as upon the Writ de quare excommunicato may appear Other crimes are yet also by this Law allowed bail such as are persons indicted of Larceny before Sheriffs c. persons imprisoned upon slight grounds Receivers and Accessories before Felony Trespassers persons appealed by provers after the death of the approvers If bail be granted otherwise than the Law alloweth the party that alloweth the same shall be fined imprisoned render damages or forfeit his place as the case shall require And thus the iniquity of the times was so great as it even forced the Subjects to forgo that which was in account a great liberty to stop the course of a growing mischief Publishers of false News whereby discord or slander may arise between the King and his people shall be imprisoned till he produce the Relator It is therefore an offence against the Crown to procure or maintain an ill conceit in the King of the people or an ill conceit in the people of the King and it is as well an offence against the Crown for the King to conceive ill of his people as for them of him But all must be grounded upon falshood for truth respects no man's person and all men are equally bound by the woe if they call good evil or evil good although difference must be made in the manner of representation And upon this ground of maintaining strife was a Law made also against Conspiracy to make or maintain Indictment Suit or Quarrel and it was likewise finable Redisseisors and postdisseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly Redisseisin was under no other Law than that of Desseisin but by this Law made a matter belonging to the Crown and tried before the same Judges that had the power of enquiry of all offences against the Crown The penalty of imprisonment in this case was to be without bail but onely by the King 's Writ de homine replegiando and yet even thus the penalty was not sufficient to restrain the offence and therefore a Law was made to abridge the power of that Writ as touching such offender and they became irremediable as touching their liberty by that Writ besides that upon recovery had against them they lost double damages Trespassers in Parks and Fish-ponds convicted within a year and a day shall render damages suffer imprisonment for three years and give security of good behaviour for time to come If any Beasts be taken in a felonious manner he shall be proceeded against as a Robber From the times of King Steven the Lords and great men endeavoured to advance their power and greatness so high above the meaner sort of Free men as they made Kings continually jealous of their power Castles had been a bone of long contention between them but they being for the most part taken away the strife was about Prisons and power to imprison offenders and that also after much opposition they laid aside Yet the violence of these times being such as though Felonies were somewhat dreaded Trepasses of the highest nature were little regarded such as were riotous hunting in their Parks and fishing in their Waters The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing but this was also denied them though by Henry the Third in his first time when as yet the Government was not worsted by projects of Arbitrary power or corrupt Counsels of Forreigners nor himself a man able to sway with the Lords in matters that were of doubtful prerogative And to speak indifferently it is better for the Liberty of the Subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by Law than by the Warrants of great men especially in their own cases and therefore in this matter the Kings Prerogative was a patron to the Free mens liberty Nevertheless these great men give not thus over their game for though in times of publick calamities little place is left for pleasure to any man yet when times are grown to more quiet pleasure revives and the great men renew their motion and though they could not obtain prisons to their own use as they endeavoured at the meeting at Merton yet now they obtain the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the loss of their pleasure And yet this Law sufficed them not but they obtain a further priviledge that such persons as are found so trespassing and refusing to submit may be killed without peril of Felony CHAP. LXX Of the Militia during these Kings Reigns THe Souldiery of England may be considered First in regard of the Persons Secondly their Arms. Thirdly their Service The persons were as formerly not onely such as were milites or Tenants in Knight-service but also such as served at the Plough and concerning them both it is to be considered what the Law made by Edw. the 2 d. holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood if they shew not cause to the contrary Regularly all Tenants by Knight-service ought to be Knights but de facto were not so as in these times there was a further work to make a man a Knight than his bare Tenure for such onely were milites facti who had both Lands sufficient to maintain the Arms and state of a Knight and also a body fit to undertake the service in his own person and whereof he had given sufficient proof the field Others that had Land either had not sufficient maintenance or not habiliments of person and as not expected were laid aside of this sort were many by reason of the late Civil Wars in which they had much impaired both their bodies and Estates This rendred the strength of the Kingdom and Militia so much decayed and the minds of men so wearied that they began to love ease before the times would brook it and a cessation from Arms before they had any mind to peace The Parliament