afterward it was punished by fine and imprisonment by a law made by Alfred as he provided in like manner for other Church lawes The times anciently were not so zealous for due observance of Divine worship False worship unlesse by the Churchmen who were the leaders therein Canon Apost cap. 10. a forraine Canon was made to enforce that duty long before but it would not down with the rude Saxons they or the greater sort of them were content to come to Church onely to pray and heare the word and so went away this is noted by that ancient writer in nature of an imputation Bed hist lib. 3. cap. 26. as if somewhat else was to be done which they neglected this somewhat was the masse which in those daies was wont to be acted after the Sermon ended Mag. Cent. 7. cap. 6. and its probable that if the Nobles were so ill trained up the inferiour sort was worse and yet finde we no law to constraine their diligence or to speake more plainly it s very likely the Saxons were so resolute in their worship as there was either little need of Law to retaine them Concil Brit. p. 306. or little use of Law to reclaime them for it s observed in their late Psalter that the Roman Clergy was not more forward to Image or saint-Saint-worship then the people were backward thereto and therein shewed themselves the true seed of their ancestors in Germany of whom it s observed that they indured not Images Tacit. Mor. Germ. but worshipped a Deity which they saw sola reverentia Sorcery and Witchcraft they had in abomination yet it was a sinne alwaies in a myst and hard to be discerned but by the quicksighted Clergy and therefore it was left to their censure Concil Brit. 246. An. 745. as a sinne against the worship of God This Ethebald the Mercian King first endowed them with and they alone exercised the cognisance thereof till Alfreds time who inflicted thereupon the penalty of banishment Ibid. 377. but if any were killed by inchantment the delinquent suffered death by a Law made by Aethelstan Ibid. 403. An. 928. And thus by degrees became one and the same crime punishable in severall jurisdictions in severall respects Concerning perjury Perjury the Prelates had much to doe therewith in future times and they had the first hint from Ina the Saxon Kings grant to them of power to take testimonies upon oath Ll. Sax. fo 4. as supposing that the reverence that men might beare to their persons and functions would the rather over-aw their tongues in witnessing that they would not dare to falsifie least these knowing men should espie it and forthwith give them their doome But no positive Law allowed them that power of sentence till Aethelstans law gave it An. 928. and upon conviction by the same Law distested the delinquents oath for ever Sacriledge Sacriledge comes in the next place being a particular crime meerly of the Clergy mens exemption and naming for before they baptised it you might have well enough called it theft oppression or extortion This crime the Prelates held under their cognisance by vertue of that generall maxime Concil Brit. p. 127. An. 610. Ibid. 265. that all wrong done to the Church must be judged by the Church The first time that I can observe they challenged this power was by Egbert Archbishop of Yorke in the seventh Century But nothing was more their own then Simony Simony and that may be the reason why we finde so little thereof either for the discovery or correcting thereof All former crimes were in their first act destructive to the Church but this advantagious Concil Brit. 263. and therefore though the Canons roare loud yet the execution is not mortall because it s bent against the dignity and not the gaine and although the Canon would not that any Presbyter should be made but presented therewith to some place to exercise his function in yet it serveth not for those times when men were sent forth rather to make flocks then to feed flocks And yet the theame of marriage was the best dish in all their entertainment Matrimonial causes they had the whole common place thereof with the appurtenances within the compasse of their text before ever it attained the honour of a Sacrament It was a branch of Moses Law whereof they were the sole expositours and so seemeth to be cast upon them by a kind of necessity as an orphan that had no owner Neverthelesse a passage in Eusebius seemeth to repose this trust in the civill Magistrate for he relateth out of Justin Martyr concerning a divorce sued out by a godly Matron long before the Prelacy got into the saddle or the Clergy had the power of Judicature And whereas Lucius taxed Vrbicius the Magistrate for punishing Ptolomy who was guilty of no crime worthy of his cognisance in that kind amongst other crimes enumerated by him whereof Ptolomy was not guilty he nameth the crimes against the seventh Commandement intimating thereby a power in the Judge to have cognisance of those crimes as well as others But the Prelacy beginning to mount nibled at it in the second Century but more clearly in the fourth when the persecutions were allayed and men of learning began to feele their honour and never left pursuit till they had swallowed the baite and exercised not onely a judiciary power in determining all doubts and controversies concerning the same but challenged an efficienciary power in the marriage-making This garland Austin brought over with him and crowned the Saxon Clergy therewith Beda hist l. 1. cap. 27. as may appeare by his Queres to Pope Gregory and thus the Saxons that formerly wedded themselves became hereafter wedded by the Clergy yet the civill Magistrate retained a supreame legislative power concerning it as the joynt marriages between the Saxons Britons and Picts doe manifest for it s said of that work that it was effected per commune concilium assensum omnium Episcoporum procerum comitum omnium sapientum seniorum populorum totius regni per praeceptum Regis Inae and in the time of Edmond their King were enacted Laws or rules concerning marriage Concil Brit. 219. Concil Brit. p. 427. An. 944. and so unto the Lay power was the Ecclesiasticall adjoyned in this work The Clergy having gained the principall with more ease obtained the appurtenances such as are Bastardy Adultery Fornication and Incest There was some doubt concerning Bastardy Bastardy because it trenched farre into the title of inheritance and so they attained that sub modo as afterward will appeare The Lawes of Alfred and Edward the elder allowed them the cogisance of Incest Incest Concil Brit. p. 392. An. 905. although neverthelesse the civill Magistrate retained also the cognisance thereof so far as concerned the penalty of the temporall Law Adultery and Fornication they held without controle yet
rigged according to the Grecian guize it may be well supposed that there is some consanguinity between the Saxons and the Grecians although the degrees be not known The people were a free people governed by Lawes and those made not after the manner of the Gauls as Caesar noteth by the great men Caes com but by the people and therefore called a free people because they are a Law to themselves and this was a priviledge belonging to all the Germans as Tacitus observeth in cases of most publique consequence de majoribus omnes like unto the manner both of the Athenians and Lacedemonians in their Concio Histor Germ. Plutarch vit Solon Lycurg For which cause also I take the Gauls to be strangers in blood unto the Britons however nigh they were in habitation That some matters of action especially concerning the publique safety were by that generall vote concluded and ordered seemes probable by their manner of meeting with their weapons But such matters as were of lesse concernment the Councell of Lords determined de minoribus Principes Albinus Sax. 72. saith the same Authour Their Countrey they divided into Counties or Circuits all under the government of twelve Lords like the Athenian territory under the Archontes Xenophon These with the other Princes had the judicatory power of distributive justice committed to them Tacit. together with one hundred of the Commons out of each division The election of these Princes with their commission was concluded inter majora by the generall assembly and they executed their commission in circuits like unto the Athenian Heliasticke or Subdiall Court Emius which was rurall and for the most part kept in the open ayre in briefe their judicials were very sutable to the Athenian but their military more like the Lacedemonian whom above all others in their manners they most resembled In their Religion they were very devout saving that they much rested in the reverence they bare to their Priests whom they made the moderator of their generall Assembly their Judge advocate and executioner in Martiall Law therein submitting to them as unto Gods instrument They worship an invisible and an infinite Diety mans flesh is their sacrifice of highest account and as often as they make inquiry by lots they doe it with that solemne reverence as may put all the Christian world to the blush precatus Deos coelumque suspiciens and this done by the Priest of the Town if it be in publique causes or otherwise if private then by the master of the family so as they had family-worship as well as publique These things I note that it may appeare how nigh these invited guests resemble the old Religion of the Britons Avent Anal. Bowr 1.10 Bruter in Tacit. 125. and how probable it is that this Island hath from time to time been no other then as a sewer to empty the superfluity of the German Nations and how the influence of these old principles doth worke in the fundamentall government of this Kingdome to this present day These are the instruments chosen by God and called by the Britaines to be their deliverers from their enemies which they did indeed yet not swayed thereto by love of justice or compassion for if writers say true they were no better then high-way men both by Sea and Land Amian but by their love of spoyle and prey and by the displeasure of God against a dissolute people They professe friendship neverthelesse in their first entrance but espying the weaknesse of the Britons and feeling the strength of the Picts and finding the Land large and good they soone pickt quarrels with their Hoast made peace with the Picts and of fained friends becomming unfained foes to the Britons scattered a poore remnant of Christians some to the furthest corners of the Kingdome others into forraine Nations like so many seedesmen to sow the precious seed of life in a savage soile And those few that remained behind profiting under much misery by their doctrine and good example yeelded better blessings unto their new come guests then they either expected or desired And thus the miseries of poore Britaine became riches of mercy to the North and Easterne people and the ruines here the foundations of many famous Churches elsewhere Nor yet was mercy from the Britons utterly taken away nor their blood drawn out to the last drop or their name quite blotted out of the booke of fame for whereas two things make men miserable viz. the heavinesse of the burthen without and the failing of the heart within and Gods ordinary way of redresse of the former beginneth in taking away the later thus dealt he with the Britons for in danger as want of strength breeds feare and that by extreamity dispaire so dispaire oftentimes revives into a kind of rage that puts strength forth beyond reason I say beyond reason for cause cannot be given thereof other then Gods extraordinary dispensation in a judiciary way when he seeth the stronger to wax insolent over the weaker Thus the Britons fled from the Picts so long as they had any hope of reliefe from the Saxons but being become their enemies and pursuing them to the low water marke that in all reason they must either drinke or bleed their last then their courage revived and by divers victories by the space of 200 yeeres God stopped the hasty conquest of the Saxons the result whereof by truces leagues commerce conversation and marriages between these two Nations declared plainly that it was too late for the Saxons to get all their bounds being predetermined by God and thus declared to the world In all which God taming the Britons pride by the Saxons power and discovering the Saxons darknesse by the Britons light made himselfe Lord over both peoples in the conclusion CHAP. V. Of Austins comming to the Saxons in England his entertainment and worke DUring these troublesome times came a third party that wrought more trouble to this Isle then either Pict or Saxon for it troubled all This was the Canonicall power of the Roman Bishop now called the Universall Bishop For the Roman Empire having removed the Imperiall residence to Constantinople weakned the Westerne part of the Empire and exposed it not onely to the forraine invasions of the Goths Vandals Herules Lombards and other flotes of people that about these times by secret instinct were weary of their owne dwellings but also to the rising power of the Bishop of Rome Naucler 505. and purposely for his advancement Who by patience out rode the stormes of forraine force and tooke advantage of those publique calamitous times to insinuate deeper into the consciences of distressed people that knew no other consolation in a plundred estate but from God and the Bishop who was the chiefe in account amongst them the beauty of the Bishop of Rome thus growing in the West made him to out-reach not onely his owne Diocesse and Province but to minde a kind
present and interpose their liking or disliking of the proposition si displicuit sententia fremitu aspernatur si placuit frameas concutiunt and some hints I meet with that this course continued here in England for some presidents runne in magna servorum Dei frequentia as that of Ina Ll. Sax. Lamb. p. 1. Concil Brit. 219. Ingulfus commune consilium seniorum populorum totius regni another Councell by him holden The councell of Winton An. 855. is said to be in the presence of the great men aliorumque fidelium infinita multitudine And it will appeare that it continued thus after the Norman times what power the vulgar had to controll the vote of the wise men I finde not fremitu aspernabantur its said and probably it was a touch of the rudenesse of those times for it was not from any positive Law of the Nation but a fundamentall Law in nature that wise men should make Lawes and that the supreame judicature should rest in the Wittagenmot was never an honour bestowed upon it by the Saxons but an endowment from the light of reason which can never be taken away from them by that headlesse conceit provoco ad populum but that body must be as monstrous as the Anthrophagi whose heads are too nigh their belly to be wise CHAP. XXI Of the Councell of Lords THis in the first condition was a meeting only of the Lords for direction in emergent cases concerning the government and good of the Common-weale and for the promoting of administration of justice these the Historian cals Minora because they were to serve onely the present passions of State Afterwards when they had gotten a King into their number they had so much the more worke as might concerne due correspondency between him and the people and of themselves towards both This worke was not small especially in those times of the growth of Kings but much greater by the accesse of Prelates into their number with whom came also a glut of Church affaires that continually increased according as the Prelates ambition swelled so as this Councell might seem to rule the Church alone in those daies when as few motions that any way concerned Church-men but were resolved into the Prelaticall cognisance as the minora Ecclesiae and thus under the colour of the minora Ecclesiae and the minora Reipublicae this mixt Councell of Lords came by degrees to intermeddle too farre in the magnalia Regni Mag. cent 8. cap. 9. An. 712. Concil Brit. p. 189. An. 694. For by this meanes the worshipping of Images and the masse was obtruded upon the Saxons by the Roman Bishop and his Legate and the Archbishop of Canterbury and decreed that no Temporall or Lay person shall possesse any Ecclesiasticall possessions That elections of Ecclesiasticall persons and officers shall be by Bishops That the possessions of Church-men shall be free from all Lay service and taxes And in one summe they did any thing that bound not the whole body of the Free men In which had these Lords reflected more upon the office and lesse upon the person and not at all upon their private interest they doubtlesse had been a blessing to their generations and a Golden Scepter in the hand of a righteous King but contrarily missing their way they became a Sword in the Kings hand against the subjects a snare to the Kingdome and had not the Wittagenmot in their meeting allayed those distempers the Saxon government had been little other then a Common-weale reversed CHAP. XXII Of the manner of the Saxon Government in time of warre AS the condition of States or Kingdoms are diversly considered in warre and peace so also must their government be for however warre in it selfe be but a feaverish distemper in a Common-weale yet in some cases it is as necessary as a kindly ague in due season is for the preservation of the body which many times takes distemper rather from the excellency of its constitution then from the abundance of humours Nor did the temper of the Saxon Common-weale ever shine more then in warre whiles it set a law upon that which ordinarily is master of all misrule and confusion and so fought by rule rather then by passion Their chiefe in the first times was chosen by the Freemen in the field Tacitus Ll. Edw. cap. 35 either at the Wittagenmot or the Folkmot according to the extent of his command being carried upon a sheild born upon their sholders like as now Knights of the shire are This Emblem they entertained him with to declare their trust in him and the worke that was expected from him His first Title was Heretock afterwards he was called Duke or Duce the latter whereof turned to a bare Title in the conclusion but the former maintained its owne honour so long as the name lasted After his election all sware to be at his Order and not to forsake him this was a tricke of imbased times Tacitus for though the Lacedemonian Law was positive that none should flie or breake his ranke but get the victory or die yet were they neither bound by oath or penalty shame in those times being accompted worse then death by those brave minds But times growing more old grew also more base-spirited and could not be drawn into the field holden in ranke by oathes or honour and this occasioned that Law of Ina the Saxon King that in such case a Countrey Gentleman should be fined 120 shillings if he were landed Ll. Sax. Lamb. Cantab. 10. but if otherwise 60 shillings and the Yeoman 30 shillings and afterwards the penalty was increased to the forfeiture of all the estate of the delinquent Concil Brit. p. 528. An. 1009. In their warres they went forth by bodies collectively as they were united by the law of pledges this made them sticke close together for the honour of their families and friends Tacitus and rendered their encounters mortall and to the worsted party commonly fatall for once beaten in the field they could hardly recover either by rallying or gathering a new Army Probable it is that the Lords might have their villaines to follow them in the battaile but the strength consisted of the free men and though many were bound by tenure to follow their Lords to the wars and many were voluntiers yet it seems all were bound upon call under perill of fine and were bound to keepe Armes for the preservation of the Kingdome Ll. Edw. cap. 35. their Lords and their own persons and these they might neither paune nor sell but leave them to descend to their heires and in default of them to their Lord and in default of him to their chiefe pledge and for want of such to the King They mustered their armes once every yeere both in Towns and Hundreds viz. the morrow after Candlemas and such whose bodies were unfit for service were to finde sufficient men for service in their stead They were strict in their
the right genius of this law will also more evidently appeare by the practice of those times which even when justice it selfe did most importune so tenderly regarded the liberty of mens estates that no distresse could issue without publique warrant obtained Ll. Gulielm cap. 42. 45. and upon three complaints first made and right not done and when rape and plunder was in the heat and men might seem to have no more right then they had power to maintaine yet even then this Law was refuge sufficient for such as were oppressed Gloss 227. Camb. Brit. Norff. and was pleaded in barre against all usurpations and intrusions under pretext of the Conquerours right whatsoever as by the case of Edwine of Sharneburne may appeare Secondly that the free men of England had vote in the making of Laws by which meum and tuum was bounded and maintained as may appeare by what hath been already said nor shall I endeavour further therein Thirdly they had an influence upon the judicatory power for first the matter in fact was determined by the votes of the free men as the Lawes of the Conquerour and of Henry the first doe sufficiently manifest Secondly they had an influence in the making of the Sheriffe who as well as the Bishop was by election of the people Ll. Gulielm cap. 15. Thirdly they had an influence upon all Judges by setting a penall Law upon them in case of corruption which if not so penall as to take away life was neverthelesse penall enough to make an unjust Judge to be a living pattern and example of misery to teach others to beware Two things more must be added though somewhat collaterall to this purpose Concerning the right of the free men in the common Mint and in their villains Concerning the Mint Ll. Aethelst c. 6 Ll Aetheldr c. 22. that the Saxons having made it as parcell of the demesnes of the kingdome and leaving to the King onely an overseership reserved the controll and chiefe survey thereof to the grand Councell of the kingdome who had stated the same in the Confessors time But after him the Normans changed the current according to their own liking till by Henry the first it was reduced into the ancient course Ll. Hen. 1. allowing no money but such as was currant in the daies of the Confessor whose laws also with some alterations by the Conquerour with common advice he also established Concerning the Lords right to their villains it is observable first Ll. Gulielm cap. 65 66. that liberty of infranchisement was allowed which could never have been had not the liberty of the subject been saved Secondly that Infranchisement properly is the worke of the people or the body and the Lord was to deliver his villaine by his right hand unto the Sheriffe in full County court and pronounce him free from his service and shall make roome for him by free passage and open doores and deliver him free armes viz. a Lance and a Sword and then he is made a free man as I conceive to all intents and purposes Ll. Gulielm c. 66. Otherwaies there might be manumission as if the villaine remained in a City Burrough walled Town or Castle by a space of a yeere and a day and no claime made to his service by his Lord he shall be thenceforth free from the service of his Lord for ever and yet this manumission could not conclude any but the Lord and his heires or assignes nor could it inforce the body to allow that for a member which was none before Thirdly that notwithstanding they allowed the Lords liberty of infranchisement Ll. Gulielm 65. yet would they not allow them free liberty of disposing them as other chattels nor by the law of the Conquerour might they sell their villains out of the Countrey or beyond Sea for the King had right to the mediate service of every villaine though the Lord had the immediate and therefore that Law might hold in force neverthelesse the Ordinance that Anselme made that no Lord should sell his villaine they would never allow for a Law nor did it hold in force CHAP. L. A recollection of certaine Norman Lawes concerning the Crown in relation to those of the Saxons formerly mentioned I Call them Norman Lawes because they were allowed by them or continued in force although many of them had their originall from the Saxons First and second Commandements One God must be worshipped and one faith of Christ maintained thoroughout the whole Kingdome This is found amongst the Laws of King William published by Mr Selden Ll. Gulielm c. 51. and was for substance in the Saxons time saving that we finde it not annexed to the Crown summarily untill now so as by this law Heresie and Idolatry became Crown pleas and the like may be collected concerning blasphemy concerning which it s said as of the servants killing his Lord that its impardonable Ll. Hen. 1. c. 75 nor could any man offend herein but it endangered his whole estate The triall of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and as possibly in the County court of the Torne where the Bishop was present Jura Divina edocere Peterpence Ciricksceate and Tithes must be duly payd These are all Saxon laws united to the cognisance of the Crown as formerly hath been shewed Onely the first William especially provided that in case any man worth thirty pence in chattels did pay foure pence for his part Ll. Gul. c. 18. c. 20. Ll. Hen. 1 c. 10. it should be sufficient both for himselfe and his retinue whether servants or retainers and defaults in payment of these duties were finable to the King Invasion upon the right of Sanctuary fined This I note not so much in relation to any such law amongst the Saxons Ll. Gulielm cap. 1. as to the future custome which now began to alter according to the increase or wane of the Moone I doe not finde this misdemeanour to be formerly so much taken to heart by the Crown nor possibly would it have been at this time but that the King must protect the Church if he meane to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their owne right by themselves Amongst all the rest of Church rights this one especially is confirmed viz. That any delinquent shall have liberty of Sanctuary to enjoy both life and member notwithstanding any law to the contrary This priviledge was claimed by the Canons but it must be granted by the Temporall power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such priviledges in particular yet could not such grants create such immunities contrary unto or notwithstanding any publique law of the kingdome and therefore the Monasteries had their foundations confirmed by