the higher nature the party though not the Kings tenant lost his personal estate to the King for ever his free holds also for a yeere and a day after which they returned to the Lord of the soile by way of escheat It seemeth also that the losse not onely of chattels and goods but also of lands c. extended to Outlaries I conceive in case of Felony and the Kings pardon in such case could not bind the Lords right of escheate although it might discharge the goods and the yeere and the day whereunto the King was entituled which case alone sufficiently declareth what power Kings had in the estates of their subjects Manslaughter 5. Manslaughter made not bailable This was law in Henry the seconds time although it crossed the Norman Law Glanvil l. 14. cap. 1 3. and questionlesse it was upon good ground for the times now were not as those in the Conquerours times when shedding of blood was accounted valour and in most cases in order to the publique service And now it seems it was a growing evill and that cried so loud as though in case of Treason baile might be allowed yet not in this case ubi ad terrorem aliter statutum est saith the authour Robbers 6. Robbery shall be committed to the Sheriffe or in his absence to the next Castelane who shall deliver him to the Sheriffe And the Justices shall doe right to them and unto trespassers upon Land Ll. Gul. 4. Spicil 174. By the Conquerours law these offenders were bailable and I conceive this was no repeale thereof and the rather because Glanvile alloweth of pledges in all cases except Manslaughter yea in those crimes that did wound Majesty it selfe Glanvil lib. 14. cap. 1. although they concerne the destruction of the Kings person or sedition in the Kingdome or Army thereof The Justices herein mentioned were intended to be the Justices itinerant and the trespasses upon Land are meant such as are contra pacem Domini Regis as riotous and forcible entries for some trespasses were against the peace of the Sheriffe as formerly hath been observed Fauxonry 7. Fauxonry Glanvil lib. 14 cap. 7. is of severall degrees or kinds some against the King others against other men and of those against the King some are punished as wounds of Majesty as falsifying the Kings charter and whether falsifying of money were in that condition or not I leave or falsifying of measures yet more inferiour I cannot determine but its cleare by Glanvile that falsifying of the deed of a private person was of smaller consideration and at the utmost deserved but losse of member Inheritances may not be aliened 8. Glanvil lib. 7. cap. 1. Ibid. c. 5. Inheritances were in those times of lands or goods for it was the custome then that the personall estate the debts deducted was divisible into three parts one whereof belonged in right to the wife as her reasonable part the other to the heire and third to the testator to make his will of them and of the other two parts he could not dispose by will Concerning Lands it was regularly true that no man could alien his whole inheritance to the disherisin of his heire either by act in his life time or any part thereof by his last will without the concurrance of the heire But of purchased lands he may give part by act executed in his life time though he have no Lands by inheritance and if he hath no issue then he may alien all And where a man hath Lands by inheritance and also by purchase he may alien all his purchased lands as he pleaseth If the lands be holden in Gavel kinde no more of the inheritance can be conveyed to any of the children then their proportionable parts will amount unto This law of inheritance was divers according to the tenure for the lands in Knight-service alwaies discended to the heire but such as were holden in soccage passed according to the custome either to the eldest or to the youngest or to all equally And thus stood the generall state of inheritance from the Normans times hitherto Ll. Hen 1. c. 88. seeming somewhat too strait for the free men that by law of property might challenge a power to doe with their own as they pleased But the Normans saw a double prejudice herein the first was the danger of ruine of many of their families who now ingrafted into the English stocke and yet not fully one might expect a late checke to their preferments from the Saxon parents after a long and faire semblance made of their good will The second prejudice was the decay of their Militia which was maintained by riches more then by multitude of men partly because that rich men are most fearfull of offending and therefore ordinarily are most serviceable both with their bodies and estates against publique dangers and partly because by their friends and allies they bring more ayd unto the publique by ingaging them in the common cause that otherwise might prove unsensible of the condition of their Country The heire of a free man shall by descent be in such seism as 9. his ancester had at the time of his death Vide Glanv l. 7. c 9. doing service and paying releif and shall have his chattailes If the heire be under age the Lord shall have the Wardship for the due time and the wife her Dower and part of the goods If the Lord withhold seisin the Kings Justice shall trie the matter by twelve men The first of these branches is declaratory of a ground of common law but being applied to the last is an introduction of a new law of triall of the heires right by Assize of Mortdancester where formerly no remedy was left to the heire but a Writ of right If these three branches be particularly observed they speake of three sorts of heires of tenants by Knight-service viz. such as are majors or of full age and such as are minors or under age and such as are of a doubtfull age Those that are of full age at the death of their ancestors may possesse the lands descended and the Lord may not disseise him thereof but may be resisted by the heire in the maintenance of his possession so as he be ready to pay reliefe and doe service that is due and if the Lord expell him he shall have remedy by Assize Those heires that are minors shall be under the Lords guardianship till they come to one and twenty yeeres Tbe heires of such as hold by soccage are said to be at full age at fifteene yeeres because at that age they were thought able to doe that service but the sonnes of Burgesses are then said to be of full age when they have ability to mannage their fathers calling such as telling of money measuring of cloath and the like yet doth not Glanvile or any other say that these were their full age to all purposes albeit that some Burroughs at
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
sounds as much as if the tenants were bound by their tenures to ayd their Lord in all cases of extraordinary charge saving that the Lord could not distraine his tenant for ayd to his warre and this according to the Lords discretion Ibid. for Glanvile Glanv l. 9. c. 8 saith that the law determined nothing concerning the quantity or valew of these ayds These were the Norman waies and savoured so much of Lordship that within that age they were regulated But that of reliefes was an ancient sacrifice as of first fruits of the tenement to the Lord in memoriall of the first Lords favour in conferring that tenement Ibid. and it was first setled in the Saxons time The Lords priviledge of power extended so farre as to distraine his tenants into his own Court to answer to himselfe in all causes that concerned his right and so the Lord became both Judge and party which was soon felt and prevented as shall appeare hereafter Another priviledge of the Lords power was over the tenants heire after the tenants death in the disposing of the body during the minority and marriage of the same As touching the disposing of the body the Lord either retained the same in his own power Glanv 7.10 or committed the same to others and this was done either pleno jure or rendring an account Ibid. c. 12. As concerning the marriage of the females that are heires or so apparent the parents in their life time cannot marry them without the Lords consent nor may they marry themselves after their parents death without the same and the Lords are bound to give their consent unlesse they can shew cause to the contrary The like also of the tenants widdows that have any dowry in the lands of such tenure And by such like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons 14. Of the power of the last Will. It is a received opinion that at the common law no man could devise his lands by his last will If thereby it be conceived to be against common reason I shall not touch that but if against custome of the ancient times I must suspend my concurrence therewith untill those ancient times be defined for as yet I finde no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all conveyances Voluntas donatoris de cetero observetur And therefore nothing was more ordinary then for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. M. Paris An. 1216. Hoveden An. 1199. Malmsb. nov l. 1. Malmsb. l. 3. Thus King John appointed Henry the third his successor and Richard the first devised the Crown to King John and Henry the first gave all his lands to his daughter and William the Conquerour by his last will gave Normandy to Robert England to William and to Henry his mothers lands If then things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller free holds should be of too high esteem to be credited to such conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposall of the last will of the possessour nor doe I thinke that either they were thus in this Kingdome or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vaine Glanvil l. 7. cap. 1 5. I have observed the words of Glanvile concerning this point and I cannot finde that he positively denieth all conveyance of land by Will but onely in case of disherison the ground whereof is because its contrary to the conveyance of the law and yet in that case also alloweth of a disposing power by consent of the heire which could never make good conveyance if the will in that case were absolutely voide and therefore his authority lies not in the way Nor doth the particular customes of places discountenance but rather advance this opinion for if devise of lands were incident to the tenure in Gavell kind and that so generall in old time as also to the burgage tenures Ll. Gulielm cap. 61. which were the rules of Corporation and Cities Vbi leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common law And therefore those conveyances of lands by last will that were in and after these times holden in use seem to me rather remnants of the more generall custome wasted by positive lawes then particular customes growing up against the common rule It s true that the Clergy put a power into the Pope to alter the law M. Paris An. 1181. Hoved An. 1181. Decret Alex. pap Hoveden fo 587. as touching themselves in some cases for Roger Archbishop of Yorke procured a faculty from the Pope to ordaine that no Ecclesiasticall persons Will should be good unlesse made in health and not lying in extremity and that in such cases the Archbishop should possesse himselfe of all such parties goods but as it lasted not long so was himselfe made a president in the case for being overtaken with death ere he was provided he made his will in his sicknesse and Henry the second possessed himselfe of his estate And it s as true that Femme coverts in these daies could make no will of their reasonable part Glanv l. 7. cap. 5 16. because by the Saxon law it belonged joyntly to the children Nor could usurers continuing in that course at the time of their death make their will because their personall estate belonged to the King after their death and their lands to their Lords by escheate although before death they lie open to no censure of law but this was by an especiall law made since the Conquerours time for by the Saxon law they were reputed as outlaws Neverthelesse all these doe but strengthen the generall rule Ll. Edw. 37. viz. that regularly the last will was holden in the generall a good conveyance in law If the will were onely intended and not perfected or no will was made then the lands passed by descent and the goods held course according to the Saxon law Glanv l. 7. c. 6. cap. 8. viz. the next kinsmen and friends of the intestate did administer and as administrators they might sue by Writ out of the Kings court although the Clergy had now obtained so much power as for the recovery of a legacy or for the determining