would communicate with Divels yet if the delinquent had done any mischiefe whereby death ensued the parties punishment was death Ll. Sax. cap 6. 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 lesse zealous in maintenance of the manner The second Commandement as their forefathers liked not the use of Images or pictures for adoration neither did they and although the clergy in other matters led them much yet in this they were alone for a long time for although the Roman Church had the use of Images above three hundred yeeres before Austins comming yet could not that custome fasten upon the Saxons for the space of above one hundred yeeres after Austins comming notwithstanding the endeavours of Charlemaine and Pope Constantine by his bastard decree begotten upon the dream of the Bishop of Worcester that saw the Virgin Maries picture brought him in his sleep by her selfe and with a command from her that it should be set up in the Church and worshipped Concil Brit. 218. I say it could not fasten any constant practise of Idoll worship nor ever wrest a Law from the Wittagenmot to countenance the same but rather on the contrary they still preserved the memoriall of the second Commandement in the Decalogue even then when as the Romanists had expunged the same out of the number Concil Brit. 364 Ll. Canut c. 5 and they inforced the same by a law of their own making so far as their Clergy or reverence they bare to Rome would allow It hath been formerly observed that the Saxons tooke no note of the vice of prophane swearing and cursing The third Commandement 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 Clergymens account for their neglect of teaching the poynt or upon the generall ignorance of those times which understood not the Commandement nor the Scripture For we finde no Canon against it nor scarce any doctrine concerning it but onely in case of false swearing till Anselms time True it is that Chrysostome seemeth zealous against all swearing but that was his personall goodnesse which for ought appeareth died with him And Anselme 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 maine Cent. 11. cap. 4. de lege The fourth Commandement I am the rather induced to conceive charitably of those times in regard of their exceeding zeale for the honour of the Lords day which sheweth that so farre as their knowledge would maintaine them they had zeale to make it into action They began this day doubtlesse as other daies according to the custome of their forefathers in Germany Tacitus Nox ducere diem videtur And because they would not allow their secular affaires to trench too nigh that daies devotion they made the Lords day to begin upon Saturday at three of the clocke in the afternoon and to continue till Munday morning Concil Brit. 445. 446. No pastime no not their beloved sport of hunting was allowed during all that time 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 Ibid. 268 377 404 518 546. or age onely but of the whole currant of the Saxon government and may although darke times they were yet put us in these daies of light to the blush to enter into compare with them for their devotion The fifth Commandement In their conversation with men the Saxons seemed yet more strict and being a people of a publique spirit they preferred the good of their Countrey above all accounting treachery against it or neglect thereof in time of danger to be a crime of the greatest concernment Treason and to be punished in the highest degree Tacitus Proditores transfugas arboribus suspendunt Other Treason then 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 only Felonice Miror cap. 2. Sec. 11. as may appeare in that form of an indictment for an offence of that nature intended and plotted against Edmond the Saxon King when as for the plotting against aliance though of common and inferiour nature the Indictment concluded felonice proditorie Miror cap. 2. Sec. 13. And whereas the penalty in case of treachery against the Country was death and forfeiture of the whole estate Ll. Edw. cap. 38 both reall and personall in treachery against the King it was onely losse of life and of the personall estate Concil Aenham 26. 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 The sixth Commandement 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 onely with fine according to the old rule Manslaughter Tacitus 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 feude and so under colour of punishing murder with revenge Sax. Lamb. fo 17 18. 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 appeales and so private revenge became under the power of the Law which punished death with death Miror cap. 5. Sec. 1. Ll. Alured Sax. praeface Lamb. savouring of such a King as Alfred was who first taught the Scriptures to speake in the dialect of our own Laws like the Rubrick amongst the Canons bringing therewith both strength and beauty yet they had degrees of bloodshed 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 Glossar p. 4. Ll. Canut cap. 93. or murther by foreplot or treachery and this was made nullo precio 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 losse of a subject a tenant and a friend according to that of their
Church-government during these times fol. 146. XVIII Of the Court of Chancery fol. 162. XIX Of the Courts of Crown Plas and Common Law fo 165 XX. Concerning Sheriffs fol. 168. XXI Of Justices and Lawes concerning the Peace fol. 170. XXII Of the Militia during these times fol. 175. XXIII A short survey of the Reignes of Edward the fourth Edward the fifth and Richard the third fol. 181. XXIV Of the Government in relation to the Parliament fol. 187. XXV Of the condition of the Clergie fol. 191. XXVI A short sum of the Reignes of Henry the seventh and Henry the eighth fol. 194. XXVII Of the condition of the Crowne fol. 202. XXVIII Of the condition of the Parliament in these times fol. 223. XXIX Of the power of the Clergy in the Convocation f. 229. XXX Of the power of the Clergy in their ordinary Jurisdiction fol. 232. XXXI Of Judicature fol. 241. XXXII Of the Militia fol. 245. XXXIII Of the Peace fol. 253. XXXIV Of the generall Government of Edward the sixth Queen Mary and Queen Elizabeth fol. 259. XXXV Of the Supream power during these times fol. 268. XXXVI Of the power of the Parliament during these times fol. 277. XXXVII Of the Jurisdiction Ecclesiasticall during these last times fol. 283. XXXVIII Of the Militia in these later times fol. 290. XXXIX Of the Peace fol. 297. XL. A summary Conclusion upon the whole matter fol. 300. A PREFACE CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND THE more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this second part for some time but observing the ordinary humor still drawing off and passing a harsher censure upon my intentions in my first part then I expected I doe proceede to fulfill my course that if censure will be it may be upon better grounds when the whole matter is before Herein I shall once more minde that I meddle not with the Theologicall right of Kings or other Powers but with the Civill right in fact now in hand And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power and others even to adnull the right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet licet so making the breach much wider then at the beginning I shall intend my course against both As touching the Commons right jointly with the Lords it will be the maine end of the whole but as touching the Commons right in competition with the Lords I will first endeavour to remove out of the way what I finde published in a late Tractate concerning that matter and so proceede upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judiciall power of the Parliament rested wholly in them lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not knowne nor heard of till punier times then these This last will be granted Viz. That these severall titles of Knights Citizens and Burgesses were not known in Parliament till of later times Neverthelesse it will be insisted upon that the Commons were then there The second will be granted but in part Viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor the whole The first is absolutely denyed neither is the same proved by any one instance or pregnant ground in all that Book and therefore not cleerly demonstrated by Histories and Records beyond contradiction as the Title page of that Book doth hold forth to the World First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab authoritate Negativa which is no argument in humane testimony at all Secondly the greatest number of instances in that Booke are by him supposed to concerne Parliaments or generall Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodicall Conventions for Church matters whereunto the poore Commons he well knoweth might not come unlesse in danger of the Canons dint or if they did yet had no other worke there then to heare learne and receive Lawes from the Ecclesiasticks And the Lords themselves though present yet under no other notion were they then as Councell to the King whom they could not cast out of their Councell till after Ages though they often endeavoured it Thirdly the Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the ayde of the Parliament And it is no lesse true that Kings with the Lords did in their severall ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in Warr to be Lords in peace but hard to lay downe that power at the foot of Justice which they had usurped in the rude times of the Sword when men labour for life rather then liberty and no lesse difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrey-men till peace by continuance had reduced them to a little more sobriety Nor doth it seeme irrationall that private differences betweene party and party should be determined in a more private way then to trouble the whole Representative of the Kingdome with matters of so meane concernment If then those Councils mentioned by the Author which concerne the Kings Grants and Infeodations and matters of Judicature be taken from the rest of the Presidents brought by him to maintaine the thing aimed at I suppose scarce one stone will be left for a foundation to such a glorying Structure as is pretended in the Title page of that Booke And yet I deny not but where such occasions have befalne the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergy onely and they might thinke it sufficient for them to honour their Writings with the great Titles of Men of Dignity in the Church and Common-wealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appeare they were in some of the particular instances ensuing to which we come now in a more punctuall consideration The first of these by his owne words appeare to be a Church-mote or Synod it was in the yeare 673. called by the Arch-Bishop who had no more power to summon a Parliament then the Author himselfe hath And the severall conclusions made therein doe all shew that the people had no worke
antiquity For Aethbald the Mercian King above eight hundred yeeres agoe gave the Monastry of Cutham Concil Brit. 319. with all the Lands thereto appertaining to Christchurch in Canterbury and for the confirmation thereof commanded a clod of earth with all the Writings to be laid upon the Altar Another Monument hereof more ancient by the space of above 100 yeers we finde in that grant of Withered King of Kent Concil Brit. 192. of foure plough lands in the Isle of Tenet the latter part whereof this clause concludes thus Ad cujus cumulum affirmationis cespitem hujus supradictae terrae super sanctum altare posui Last will But every man had not liberty to execute the law of his inheritance in his life time for some were surprised with sudden occasions and unexpected issues and ends and in such cases they did what they could to declare their intents by last will which by common intendment being in writing hath occasioned some to thinke that the Saxons in their originall had no use thereof being as they conceived so illiterate as not having the use of writing but the Character remaining to this day evinceth the contrary nor can those words of Tacitus nullum est testamentum in any rationall way be expounded in this sence if we consider the context which runneth thus Haeredes successores cuique liberi nullum est testamentum Which in my opinion sounds in this sence The heires and successors to every one are his children and there is no testamentary power to disherit or alter the course of descent which by custome or law is setled Otherwise to deny them the use of all testamentary power was a matter quite abhorring the custome of all the Grecians from whom they learned all that they had M Westm An. 817. Malmsb. gest Reg. l. 2. c. 2. Neverthelesse the Saxons had not been long acquainted with the Romanists but they had gotten that trick of theirs also of disheriting by last will as by the testament of Aethelwolfe and others of the like nature in Histories may appeare The conveyances formerly mentioned concerned Lands and goods but if no such disposall of goods were Goods the ancient German custome carried them after the death of the ancestor promiscuously or rather in common to all the children but in succeeding times the one halfe by the law of Edmond passed to the relict of the party deceased by force of contract rather then 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 had nothing to doe with administration for goods passed by descent as well as Lands and upon this custome the Writ de rationabili parte honorum was grounded at the common law as well for the children as the wifes part F.N. Br. 122. according as by the body of the Writ may appeare 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 severall Nations in the first entrance nor from the Danes or Normans in their survenue not onely because in their originall they all breathed one ayre of the laws and government of Greece but also they were no other then common dictates of nature refined by wise men which challenge a kind of awe in the sence 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 delaies till upon experience they found that by staying a little longer they had done the sooner and this brought forth particular times of exemption Miror cap. 4. Sec. 16. as that of infancy and child-bearing in case of answer to criminail accusations But more especially in case of regard of holinesse of the time as that of the Lords day Saints daies Ll. Sax. cap. 10. Concil Brit. 518. Fasts Ember daies for even those daies were had in much honour Nor onely daies but seasons as from Advent to the Octaves of Epiphany from Septuagesima till fifteen daies after Easter or as by the Laws of the Confessor till eight daies 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 doe manifest yet all agreed in the season of the yeere and that some were more fit for holy observation then others And thus by the devotion of Princes and power of the Clergy the foure Terms of the yeere were cut out for course of law in the Kings Court the rest of the yeere 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 Miror cap. 4. Sec. 18. 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 An Epilogue to the Saxon government ANd thus farre of the joynts of 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 Common-weale the more curious lineaments being now disfigured by time afarre off it seems a Monarchy but in approach discovers more of a Democracy and if the temper of a body may appeare by the prevailing humour towards age that government did still appeare 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 it trenched not upon the fundamentall law of the peoples liberty The worst effect it had was upon the Church in the decay of the power of Religion and worship of God For after much toile and losse both of sweat and blood 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 affaires laid aside their Paganisme and joyned with the Clergy and as their converts and pupils gained not onely their quiet residence but the favour of the Clergy to make triall of the Throne and therein served the Clergy so well as they brought the people to a perfect Idolatry with times places and persons and subjection of their estates to Church tributes
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
time and occasion to worke the issue which doubtlesse was much and had been more had the Norman race continued in the Throne But falling out otherwise the English blood prevailed in the head and the Language continued possession mixed onely with some Norman words as the people were also a mixed people So as the Language was changed though it was altered Lastly it s affirmed that the Normans did impose a new custome called Coverfeu and its thought by some to be a meere vassalage that every man at the noise of the Bell every night must put out both fire and Candle and yet is a matter of so small concernment that of being in its own nature convenient Scotland received it without such coercion and can be reputed for no other then a seasonable advice which any Corporation in time of danger might order within their own Precinct without transgressing the liberty of the subjects Of lesse consequence is that change which is alledged was brought in by the Normans in the sealing of Deeds of conveyance by seting a print upon Wax annexed to the Deed which formerly was wont to be by setting a print upon the blanke at the end of the Deed and yet it s looked upon by some as a trophee of conquest or absolute government concerning which I will not dispute whether the Normans first brought in this course but shall rest in this that the King being about to compleat the unity of the Laws in the superstructure as well as in the fundamentals if herein and in some other particulars the English submitted to the Normans they likewise stooped to the English Law in other things and therefore such concurrences ought not to be imputed unto a conquering power but unto moderation amongst a company of wise men Thus having glanced at the changes of Property Lawes Tenures Language and some customes we come to that which is the maine occasion of all these complaints I meane unlawful Taxes afforstinges and other such oppressions upon the estates of the people concerning which I purpose not to contend for much thereof is like to be true the Norman Kings especially the two Williams being under continuall occasion of expence many warres more provocations which kept them ever in action and that wrought their spirits into an immoderate heat little inferiour unto rage and so they might soon outreach their bounds and sit heavy on the people and in such occasions no man escaped Norman nor English Clergyman nor Layman nor did the Kings themselves come off such gainers but that they might sometimes put up their gettings into their own eyes and see never a whit the worse And yet to doe them right they were not alwaies of such sad influence but had their lucida intervalla especially he that had the least cause I mean the Conquerour who certainly was a man of a serious regard and did not onely remit sometimes his rigour in exacting where he ought not but also forbare to require that which he had some colour to demand for whereas the Daneguelt was left unto him in the nature of an annuity he was contented to turne it into a summe in grosse and to demand it onely Cum ab exteris gentibus bella vel opiniones bellorum insurgebant Hoveden and it was then done consultis magnatibus These things thus considered might have mollified somewhat the Pennes of angry Writers and where they faile may be caution to Readers to consider occasions and dispositions of Princes and so long as Laws hold in title to construe the irregularities of Princes to be but as steps out of the path to avoyd a little dirt that a man may get home the more cleanly and therefore rightly can derive no other title of absolute soveraignty to their successors then to hold by infirmity And thus the Government under the Normans at the worst was but like that of childhood following sudden and present desires not wise enough to plot for absolute Monarchy nor to keepe off a polity which still rooted underneath though the fruit while it was now green was harsh and unpleasant I shall conclude this Norman discourse with this advertisment that notwithstanding the words Conquerour and Conquest have often faln from my Pen and hereafter may doe the like yet can I see no reason why divers succeeding Kings comming to the Crown by argument of the Sword and not by right of descent may not deserve the Laurell as well as the first Norman King onely because fame hath fancied him that Title under a kind of prescription I do the like CHAP. LVII Of the Government during the Reignes of Steven Henry the 2. Richard the 1. and John And first of their Titles to the Crown and disposition in government I Have cut out this portion of one hundred twenty and five yeeres containing the reignes of these Kings apart from their successors in regard of their titles all of them being under one generall climate and breathing one ayre of election and compact between them and the people Now was the issue male of the stocke of Normandy quite wasted I meane in relation to succession by inheritance for although it was the lot of Henry the first to have many children yet it was not his happinesse to have many lineal nor to hold what he had nor of them all was there left above one that might pretend to the Crown and it a daughter who was the great Grandmother to all the succeeding Kings till this day Onely King Steven Steven like an unruly ghost comming in upon the Stage troubled the play during his time This daughter of Henry the first was married to the Emperour Henry the fourth and surviving him was in her fathers life time acknowledged to be his heire the Sea having formerly swallowed up the remainder of his hope unto her the Lords sware fealty as to the next successor in the Throne after the decease of her father being led thereto by the instigation of her father whose conscience told him that the Title to the Crown by inheritance was weakned by his own president himselfe comming to the same by election of the people contrary to the title of his brother Robert Neverthelesse this was not the first time that the English Crown refused to be worne by practice for Henry the first being dead Steven the younger sonne to a younger sister of Henry the first put up head who being of the Royall stemme a man and a brave Souldier by the ancient course of the Saxons had title enough to be thought upon in a doubtfull succession Besides he was a rich man and had enough to raise up his thoughts to high undertakings and a Brother a Bishop and Legate to the Pops here in England one who was of a high spirit and vast power advantages enough to have quickned a much duller spirit then his was who was the sonne of a daughter to William the Conquerour and to make him yet more bold he had the upper
age being loaden with military affaires wherein he had been long exercised he had contracted some shifting courses of a souldier in gathering money and souldiers somewhat out of the rode way of an English King Hoveden 348. and led an ill example to future ages nor had he other salve for this wound but that it was for the honour of Christian faith and for the sake of Jerusalem Next comes in Richard the first Richard the first Henry the seconds sonne both in birth and courage yet was his behaviour to his father such that his meritorious holy warre could never wipe it out of the Callender of story His entrance was upon an election made in his fathers life time and the same confirmed by receiving of homage from the Peeres M. Paris The sad troubles that this election amongst other things occasioned to his father in his old age show plainly that Richard trusted not to the title of inheritance nor the French King that tooke his part unto the English custome for the possession of the Crown but all must be done in the life of the father that must secure the government to the sonne when the father is dead and thus is he entred upon the Throne not as heire but as successor to his father yea rather as survivor taking possession of what was by speciall compact conveyed to him by the means of his father in his lifetime though sore against his will if writers speake true As his entrance was it promised a better government then followed for though it was for the most part hidden in the wombe as himselfe did subsist in an other world yet by a secret providence he was given over to the election of ill deputies and therefore he was not welbeloved however deere he was to this Nation A third part of his government was spent in a calm with Pope Clergy Commons and all Nations that were not Infidels upon conscience it seems that he ought not to be troubled who adventured his person so bravely in the holy warre But above all he was the Clergies darling not onely for his adventure in the holy Land but now much more in his returne by his imprisonment in Germany and therefore they stucke close to him in his absence not onely in maintenance of his right to the Crown whereto some made claime and his own brother John did more but emptied themselves to the utmost for his delivery which they effected to the envy of the French and such as longed for his downfall here in England The King comes like the Sunne rising scattering his brothers designes by his very view then returns his thoughts for France where he spent the rest of a restlesse life and as his entry upon the Throne was unnaturall for he made his way upon his fathers Hearse so was his reigne full of troubles and his end not unlike for it was violent and by the hand of his own subject and so ended his reigne that scarce had any beginning Next comes in King John John to act his part according to his entry hand over head whether called by a people scared with the noise of succession by inheritance or such as thought it not convenient nor safe in a stirring time to have a child to be their King or lastly led by an interest that John the youngest sonne of Henry the second had by wofull experience obtained amongst the Lords or some or all concurring its cleare they crossed the way of inheritance waved Arthurs title who was heire to Richard the first and by him also appointed to succeed being then but a child and they chose John a man of warre trained up in the government of Ireland which made way for his active spirit and well seen in the government of England which might have made him wise and under these conceits were willing to forget his oppression in Ireland his treachery against his Lord and King in England set the Crown upon his head and in conclusion acted the Tragedy of Ahimelech in English wherein the Cedar was rooted up and the Bramble troden down The generall temper of his government sheweth that though the King must be thought sober yet the man was mad for he hauked at all manner of game France Scotland England Laity Clergy spared not the Pope himselfe scorned to stoop to occasion all which he did by the strength of the name of a King till at length being well cuft and plumed he was faine to yoke his lawlesse will under the grand charter depose his Crown at the Popes foot and instead of a King became little better then a chiefe Lord in England Thus although Richard the first forgot this mans disloyalty yet God remembred it for the King having gotten the Pope upon the hip and put him to his last shift to stirre up the French to set his curse on worke was by an hidden providence conquered in the middest of a Royall Army without view of enemy or other weapon then a meere noise his Nobility either suspecting all would be gone to Rome or expecting that the King would not deny them their own seeing he had been so profuse in giving away that which was not his demand that their liberties might be confirmed but he being loath to be mated by his Nobles though he was overmatched by the Pope armes himselfe with the Popes curse and the Lords themselves with the French mens power thus the tables are turned and the French playing an after-game to gain to themselves the Crown of England after they saw the death of a Warlike King discovered their designe before it was ripe and in the conclusion were beaten out of the Kingdome by a child It s not worth inquiry what the King allowed or disallowed for it was his course to repent of any thing done contrary to his present sence and made it his chiefe principle in policy to have no principle but desire wherein he triumphed too long by reason of the contentions between the Clergy and the Laity which comming nigh unto the push of the pike and the King ready for the spoile of both the Barrons and Clergy suddenly close their files and like a stone-wall stood firm to each other till the King wearied with successlesse labour was glad to give and take breath M. Paris An. 1215. confirmed the liberties of the people by his Charter which is now called the Magna charta for substance and gave such collaterall security for performance on his part as did let the world know the thing was as just as himselfe had been unjust The worst point in the case was that the people got their own by a kinde of redisseisin a desperate remedy for a desperate condition wherein the Common-weale then lay between life and death upon the racke of the will of a King that would be controlled by nothing but his own appetite and was in the end devoured by it CHAP. LVIII Of the state of the Nobility of England from
Nation who value their estates and liberties above their owne lives Rape West 1. cap. 13. Rape upon the complaint of the party violated made within forty daies shall have right If the delinquent be convicted without such complaint made he shall be fined and imprisoned Before this Law this crime was but finable unlesse the fact was committed upon a virgin for then the member was lost And this was the Saxons Law but the Normans inflicted the losse of the member upon all delinquents in any rape Nor was this made fellony by any law or custome that I can finde till about these daies It s true that Canutus punished it capitis aestimatione by way of compensation which rather gives a rule of dammages to the party wronged then importeth a punishment inflicted for an offence done against the Crown as if it were thereby made capitall 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 appeale of Rape West 2. cap. 34. And though a consent be subsequent yet the delinquent upon indictment found shall suffer death as in the case of appeale 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 husbands death All which now recited provisoes are comprehended together in one chapter and yet the Chapter is partee per fess French and Latine so farre thereof as concerneth death was written in French being the most known language to the great men in generall many of whom were French by reason of the interest that Henry the third had with France in his late warres 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 Nunne from her house shall suffer imprisonment for three yeeres and render dammages to the house This crime was formerly onely inwombed in the Canon law and now borne and brought forth into the condition of a Statute law rather to vindicate the right of the free men then in any respect had to the Clergy Antiq. Brit. fo 197. who had been very bold with the liberty of the free men in this matter for Archbishop Peckham not a yeere before the making of this law for this offence had excommunicated Sir Osborne Gifford nor could he get absolution but upon his penance first he was displed with rods three times once in the open Church at Wilton then in the market-place at Shaftsbury and lastly in the publique Church there then he must fast divers moneths Lastly he must be disrobed of all Military habiliments viz. Guilt Spurs Sword Saddell golden Trappings and to use no brave garments but russet with Lambe and Sheepe skins to use no shirt nor take up his order againe untill he had spent three yeeres pilgrimage in the Holy land and unto this penance the Knight by oath bound himselfe A strange power and to represse which it was time for the people to looke about them and rather to punish delinquents themselves then 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 Concealment of Felons West 1. cap. 9. In those ancient times pursuits of felons with hui and cry were made by Lords of mannors 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 West 1. cap. 3. yet it in no case was any fine assessed or taken till the triall before the Justices Persons defamed for felony Defamed Felons West 1. cap. â— not submitting to triall by Law shall be committed to close and hard imprisonment It hath been accounted an extreame construction of this law and questionlesse so it is that this Law should warrant that punishment of pressing to death which hath been of later times more constantly used then former times ever knew of for though it be granted that some tricke of torture was sometimes used even before the Norman times and so might now and then leave some few examples after the Norman times yet did the law never patronise such courses especially if the death of the party suspected ensued thereupon Miror cap. 1. sect 9. but accounted it manslaughter And the end of this law was not to put a man to death but to urge him to confesse and so Briton saith such as will not submit to triall 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 inferre death Briton cap. 4. sect 24. nor was it a finall judgement in the triall but onely a meanes thereto and therefore it might rather consist in deniall of conveniences then inflicting of paine Now in what cases it was used may be understood from the manner of the indictments in those daies whereof besides appeales 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 Glanvil lib. 10 cap. 1. 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 witnesse of the fact and then the delinquent would not submit to his triall by law in such case the finall judgement was to die O nore fame c. because in the one there was a fact affirmed against him by a witnesse and in the other onely a fame or suspition 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 daies Bayle West 1. cap. 15. Baile shall not be allowed to Out-laws fore-jured Thieves taken in the act notorious Thieves appealed persons burners of houses breakers of prison false coiners counterfeiters of the Broad-seale 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 gainsayd all which were before this law under baile yea the last