this day hold the last in custome to all intents whatsoever The last branch provideth the remedy to recover to the heire his possession in case it be detained either through doubtfulnesse of age of the heire or his title and it directs the issue to be tried by twelve men This triall some have thought to be of Glanvils invention and it may well be that this triall of this matter as thus set down was directed by him yet he useth often in his booke the word solet and in his preface saith that he will set down frequentius usitata and its past question but that the triall by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the widdow of the tenant whose dower is not onely provided for but her reasonable part of her husbands personall estate The originall hereof was from the Normans and it was as popular as that of Wardships was Regall and so they made the English women as sure to them as they were sure of their children The Justices shall by Assize try disseisins done since the Kings 10. comming over Sea next after the peace made between him and his sonne This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that worke which formerly belonged to the County courts Glanv lib. 13. cap. 33. and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the writ is from the Kings last voyage or going into Normandy Justices shall doe right upon the Kings writ for halfe a 11. Knights fee and under unlesse in cases of difficulty which are to be referred to the King The Justices itinerant ended the smaller matters in their circuits the other were reserved to the King in his bench Justices shall inquire of Escheates Lands Churches and 12. women in the Kings gift And of Castle guard who how much and where So as the Judges itinerant had the worke of Escheators and made their circuits serve as well for the Kings profit as Justice to the subjects They used also to take fealty of the people to the King at one certaine time of the yeere and to demand homage also These matters of the Kings Exchequer made the presence of the Judges lesse acceptable and it may be occasioned some kind of oppression And as touching Castleguard it was a tenure in great use in these bloody times and yet it seemeth they used to take rent instead of the personall service else had that enquiry how much been improper 13. Of a tenants holding and of severall Lords That one man may hold severall lands of severall Lords and so owe service to them all is so common as nothing can be more neverthelesse it will not be altogether out of the way to touch somewhat upon the nature of this mutuall relation between Lord and Tenant in generall that the true nature of the diversity may more fully appeare The foundation or subject of service was a piece of land or other tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the tenant undertooke to performe service to the Lord Glanv lib. 9. cap. 4. and the Lord undertooke protection of the tenant in his right to that tenement The service was first by promise solemnly bound either by oath which the Lord or his deputy by the common law hath power to administer as in the case of fealty in which the tenant bound himselfe to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the tenement so given or otherwise by the tenants humble acknowledgement and promise not onely to performe the services due but even to be devoted to the Lords service to honour him and to adventure limbe and life and to be true and faithfull to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to each For though it be true that by promise of being the Lords man a generall service may seem to be implied yet in regard that it is upon occasion onely of that present tenure it seemeth to me that it is to be restrained onely to those particular services which belong to that tenement and therefore if that tenement be holden in soccage although the tenant be bound to homage yet that homage ties not the tenant to the service of a Knight Lit. lib. 2. cap. 5 nor contrarily doth the homage of a tenant in Knight service tie him to that of socage upon the command of his Lord though he professeth himselfe to be his man Nor doth the tenants homage binde him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for severall tenements Glanv lib. 9. cap. 1. Lib. 7. cap. 10. and these two Lords be in warre one against the other the tenant must serve his chiefe Lord of whom the capitall house is holden or that Lord which was his by priority who may be called the chiefe Lord because having first received homage he received it absolutely from his tenant but all other Lords receive homage of such tenant with a saving of the tenants faith made to other Lords and to the King who in order to the publique had power to command a tenant into warre against his own Lord. If therefore he be commanded by the King in such cases unto warre he need not question the point of forfeiture Glanvil lib. 9. cap. 1. but if he be commanded by a chiefe of his other Lords into warre against a party in which another of his Lords is engaged his safest way is to enter upon the worke because of his allegiancc to that Lord yet with a salvo of his fealty to that other Lord. Ibid. cap. 4. But in all ordinary cases tenants and Lords must have regard to their stipulation for otherwise if either breake the other is discharged for ever and if the fault be in the tenant his tenement escheats to his Lord and if the Lord faile he loses his tenure and the tenant might thence forth disclaime and hold over for ever Neverthelesse the Lords had two priviledges by common custome belonging to their tenures which although not mentioned in the stipulation were yet more valuable then all the rest the one concerning matter of profit the other of power That of profit consisted in ayds and reliefe The ayds were of three kinds Ibid. c. 8. one to make the Lords eldest sonne Knight the other to marry his eldest daughter the third to helpe him to pay a reliefe to his Lord Paramont which in my opinion
estate if the sale be not effectuall and in case the vendor have no warrant for such goods by him sold No living Cattell shall be sold but onely in Cities Ll. Gulielm cap. 60. and before three witnesses nor shall any thing forbidden be sold without warranty No faires or markets shall be holden but onely in Cities Ibid. c. 61. Burroughs walled Towns and Castles These Lawes concerning sales and markets were ancient Saxon lawes and tend all to the avoyding of cheating men of their Cattell by surreptitious sale of them made by such as had no right Goods found shall be published by the finder to the neighbourhood Ll. Gulielm cap. 7. and if any makes claime and proofe of them to be his he shall have them giving security to bring them into the Court in case any other shall within a yeere and a day make his claim thereto The children of persons intestate shall equally divide the heritage Ll. Gulielm cap. 36. This is in terminis the Saxon law and therefore concerning it I shall referre to the same formerly recited onely I shall adde hereto the law of Henry the first Ll. Hen. I which may serve as an explanation of the former Any free man may devise his chattels by will and if he die intestate his wife children parents or next kinne shall divide the same for his soules good The first branch whereof was ancient and doubtlesse in continuall use but the iniquity of the Norman rude times was such that the Lords under surmise of arreares or reliefe would seise all the personall estate after the tenants death and so the right of last wils was swallowed up but this restoreth the power of last wils into its place and in case the party died intestate preserveth a kind of nature of descent although they be more personall Nor doth that last clause of the soules good disannull the same although the words may seem to carry away the benefit to some other hand For the whole matter is left to the discretion of such as are next to the intestate CHAP. LII Of Laws that concerne common interest of Lands THe Laws that concerne Lands and peculiarly belonging to the Normans are such as concerne principally the tenure of Lands which if duly considered although savoured somewhat of the King yet little of the Conquerour for generally it must be granted that tenures long before and after this time were as the services ordered according to the will of the giver in which as the King had the greatest share and he the most publique person of all so were his donations ordered chiefly to advance the publique service and in this regard the tenure by Knight service might more principally challenge the Kings regard then the regard of all the great men besides But this was not the soare yea rather it was the beauty and strength of the Kingdome and for which the King deserved an honorable name above most of his progenitors who had not so much land to dispose of as he had and therefore could not advance that service in any proportion equall unto him The sore that caused so many sighes was the incumbrances raised upon this most Noble and free service which through the evill of times by this meanes became the most burthensome and the onely loathed and abhorred service of all the rest I say through the evill of times for it cannot lodge in my thoughts but in the Norman times the incumbrances were nothing so great as of latter ages and that much hath been imputed to the Lawes of the Conquerour which they never deserved as may appeare in these particulars which the Laws of Henry the first have preserved in memory Tenant of the King or other Lord dying 1 Reliefe M. Paris An. 1100 1213 his heire shall pay no other reliefe then what by Law is due That which by Law is due is set down in the laws of William the Conquerour The Reliefe of an Earle Ll. Gulielm cap. 12. 8. Horses sadled and bridled 4. Helmets 4. Cotes of Maile 4. Shields 4. Speares 4. Swords 4. Chasers bridled and sadled 1. Palfray bridled and sadled The Reliefe of a Baron Ibid. c. 23. 4. Horses with Saddles Bridles 2. Helmets 2. Cotes of Maile 2. Sheilds 2. Speares 2. Swords 2. Chasers bridled and sadled 1. Palfray bridled and sadled The Reliefe of a Vavasor to his Lord Ibid. c. 24. His best Horse His Helmet His Cote of Maile His Shield His Speare His Sword Or if he had no Armes then he was to pay s. 100 The reliefe of the Countrey man is the best beast that is in his possession Ll. Gulielm cap. 29. and of him that farmeth his Lands a yeeres rent These are the Reliefes due by law and now setled in goods or armes but afterwards turned into money and its likely that the ill customes in the former times did extort both money and armes or such summes of money as they pleased and by the very words of the law it seemes they had brought it to an arbitrary power to take what they could get and yet all against Law 2. Marriage The Kings tenant shall advise with the King in marriage of his daughter sister neece or kinswoman and his widdow in like manner The sence hereof in short is that these might marry at their own will without paying fine or composition to the Lord and yet must have the liking of the Lord so farre as to declare whether the man intended were his enemy or not and fit to performe Knight service This law was therefore grounded upon the present distresse of affaires wherein the nation was unsetled and common right having established a mutuall trust between Lord and Tenant found out this meanes to preserve the same for if the marriages of those that are related to the Tenant in such manner as may inherit part or all his lands or have joynture therein should be left altogether at the liberty of the Tenant or his widow it must needs follow that the mutuall trust between Lord and Tenant must faile and the publique receive dammage And therefore if this custome were of Norman birth it was begotten bpon a Saxon law and might the rather be owned by the English 3. Dower The widdow of the Kings Tenant having children shall have her dower and portion so long as she keeps unmarried The portion here is in the Latine word maritagium which I take to be the marriage portion given by the husband according to the Saxon custome when as the dower in land was not in use whereof is spoken formerly in that Chapter of dower And the Normans were necessitated to introduce this custome of theirs with themselves partly because it was a priviledge which was their own by birth and it could not be waved without an evident wrong done to the wives of these men who had ventured their lives in that service but principally because it would not consist with
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
withstood all though he had twice consented and once subscribed to them Constit at Clarindon having also received some kind of allowance thereof even from Rome it selfe cap. 12. Clergy men holding per Baroniam shall doe such services as to their tenure belong and shall assist in the Kings Court till judgement of life or member Two things are hereby manifest First that notwithstanding the Conquerours law formerly mentioned Bishops still sate as Judges in the Kings courts as they had done in the Saxon times but it was upon causes that meerly concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spirituall Courts and not the Clergy out of the Lay courts Secondly that the Clergy especially those of the greater sort questioned their services due by tenure as if they intended neither Lord nor King but the Pope onely Doubtlesse the use of tenures in those times was of infinite consequence to the peace of the kingdome and government of these Kings when as by these principally not onely all degrees were untied and made dependant from the Lord paramont to the Tenant peravale but especially the Clergy with the Laity upon the Crown without which a strange metamorphosis in government must needs have ensued beyond the shape of any reasonable conceit the one halfe almost of the people in England being absolutely put under the dominion of a forraine power Sanctuary shall not protect forfeited goods cap. 13 14. nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened with out Licence Constit at Clarindon cap. 15. It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without licence or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Churchmen to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into Monastery without the Lords consent cap. 16. Upon the same ground with the former for the Lord had not only right in his tenant which could not be aliened without his consent but also a right in his tenants children in regard they in time might by descent become his tenants so lie under the same ground of law for although this be no alienation by legall purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affaires These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last but their Captaine Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Samson like effected more then his life for the maine thing of all the rest the Pope gained to be friends for the losse of so great a stickler in the Church affaires as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishop espied a muse through which all the game of the Popedome might soon escape and the Pope be left to sit upon thornes in regard of his authority here in England For let the Metropolitane of all England be a sworne servant to the Metropolitane of the Christian world and the rest of the English Bishops not concur it will make the tripple Crown at the best but double Antiq. Brit. 302. F xe An. 1179. Alexander the Pope therefore meaned not to trust their faire natures any longer but puts an oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceale their counsels 4. To ayd the Roman papacy against all persons 5. To assist the Roman Legate 6. To come to Synods upon Summons 7. To visit Rome once every three yeeres 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their estates bodies and soules unto her service that which remaines the King of England may keepe And well it was that it was not worse M. Paris An. 1167. considering that the King had vowed perpetuall enmity against the Pope but he wisely perceiving that the Kings spirit would up againe having thus gotten the maine battell durst not adventure upon the Kings reare least he might turn head and so he let the King come off with the losse of appeales Baronus Anal. 1164. Sec. 11. and an order to annull the customes that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to loose to the scarcrow power of Rome yet it befell him as many great spirits that favour prevailes more with them then feare or power for being towards his last times worne with griefe at his unnaturall sonnes a shaddow of the kindnesse of the Popes Legate unto him wonne that which the Clergy could never formerly wrest from him in these particulars granted by him M. Paris An. 1176. That No Clerke shall answer in the Lay courts but onely for the forest and their Lay fee. This savoured more of curtesie then justice and therefore we finde not that the same did thrive nor did continue long in force as a Law although the claime thereof lasted Vacances shall not be holden in the Kings hand above one yeare unlesse upon case of necessity This seemeth to passe somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the Kings Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a hundred murders To prevent this evill the King loth to enter the List with the Clergy about too many matters let loose the law of feude for the friends of the party slaine to take revenge and this cost the blood of many Clerkes the Laity happly being more industrious therein then otherwise they would have been because the Ecclesiasticall Judge for the most part favoured them As an expedient to all which this Law was made and so the Clergy was still left to their Clergy and justice done upon such as sought their blood Clergy men shall not be holden to triall by battaile It was an ancient Law of the Saxons and either
as foure yeeres for within that time Richard Lucy one of the Justices had renounced his Office and betaken himselfe to a cloister and yet was neither named in the first commission nor in the latter nor did the last commission continue five yeers Hoved. An. 1184. for within that time Ralph Glanvile removed from the Northerne circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appeare though little to the honour of the justice of the Kingdome or of that Judge however his book commended him to posterity I take it upon the credit of the reporter Co. jurisd c. 33 that this Itinerary judicature was setled to hold every seven yeeres but I finde no monument thereof before these daies As touching their power certainly it was in point of judicature as large as that of the court of Lords though not so high it was as large because they had cognisance of all causes both concerning the Crown and common pleas and amongst those of the Crown this onely I shall note that all manner of falshood was inquirable by those Judges which after came to be much invaded by the Clergy Hoveden Glanvil l. 14. c. 7. I shall say no more of this but that in their originall these Iters were little other then visitations of the Countrey by the grand Councell of Lords Nor shall I adde any thing concerning the Vicontiel courts and other inferiour but what I finde in Glanvile that though robbery belonged to the Kings court Glanv lib. 1. cap. 2. yet thefts belonged to the Sheriffs Court and if the Lords court intercepts not all batteries and woundings unlesse in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour trespasses Idem lib. 9. 10. besides common pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certaine Laws of Iudicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matters of the Crown as of property being desirous to observe the changes of Law with the times and the manner of the growth thereof to that pitch which in these times it hath attained We cannot finde in any story that the Saxon Church was infested with any Heresie from their first entrance till this present generation The first and last Heresie 1. Heresie that ever troubled this Island was inbred by Pelagius but that was amongst the Britons and was first battered by the Councell or Synod under Germanus but afterwards suppressed by the zeale of the Saxons who liked nothing of the Brittish breed and for whose sake it suffered more happly then for the foulnesse of the opinion The Saxon church leavened from Rome for the space of above five hundred yeeres held on its course without any intermission by crosse doctrine springing up Hoved. 585. till the time of Henry the second Then entred a sect whom they called Publicans but were the Albigenses as may appeare by the decree of Pope Alexander whose opinions I shall not trouble my course with but it seems they were such as crossed their way and Henry the second made the first president of punishing Heresie in this Kingdome unders the name of this Sect whom he caused to be brought before a councell of Bishops Nubrig l. 2. cap. 13. who endeavoured to convince them of their errour but failing therein they pronounced them Hereticks and delivered them over to the Lay power by which means they were branded in the forehead whipped and exposed to extremity of the cold according to the decree of the Church died Decret Papae Alexand. Hoveden 585. This was the manner and punishment of Hereticks in this Kingdome in those daies albeit it seemeth they were then decreed to be burnt in other countries if that relation of Cogshall be true which Picardus noteth upon the 13 chapter of the History of William of Newberry out of which I have incerted this relation Another case we meet with in Henry the seconds time concerning Apostacy 2. Apostacy Bracton lib. 3. cap. 9. which was a crime that as it seems died as soon as it was born for besides that one we finde no second thereto in all the file of English story The particular was that a Clerke had renounced his baptisme and turned Jew and for this was convicted by a councell of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortall and the manner of conviction of both by a councell of the Clergy and delivered over to the Lay power who certainly proceeded according to the direction of the Canon or advice of the councell These if no more were sufficient to demonstrate the growing power of the Clergy however brave the King was against all his enemies in the field Treason 3. Treason was anciently used onely as a crime of breach of trust or fealty as hath been already noted now it grows into a sadder temper and is made all one with that of laesa Majestas and that Majesty that now a daies is wrapped up wholly in the person of the King was in Henry the seconds time imparted to the King and Kingdom as in the first times it was more related to the Kingdome And therefore Glanvile in his booke of laws speaking of the wound of Majesty exemplifies sedition and destruction of the Kingdome to be in equall degree a Lib. 1. cap. 2. wound of Majesty Lib. 10. cap. 1. with the destruction of the person of the King and then he nameth sedition in the Army and fraudulent conversion of Treasure trove which properly belongs to the King All which he saith are punished with death and forfeiture of estate and corruption of blood for so I take the meaning of the words in relation to what ensueth Fellonies 4. Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with losse of member and estate This was the law derived from the Normans and accordingly was the direction in the charge given to the Justices itinerant in Henry the seconds time as appeareth in Hoveden But treason or treachery against the oath fealty Ll. Hen. 1. c. 25. or bond of allegiance as of the servants against the Lord was punished with certaine and with painfull deaths and therefore though the murther of the King was treason yet the murder of his sonne was no other then as of another man unlesse it arose from those of his own servants Ll. Hen. 1. c. 79 The penalty of losse of estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the moveables Glanvil lib. 7. cap. 17. was to the Sheriffe of the County unto whose cognisance the case did belong and the land went to the Lord immediately and not to the King But in all cases of Felony of
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
had entered into him and animated him in all his waies He brought in with him the first president of conscience in poynt of succession by inheritance in the English Throne for the streame of probabilities was against him He was a child and the times required a compleat man and a man for warre He was the child of King Iohn whose demerits of the State were now fresh in the minds of all men He was also designed to the Throne by his fathers last Will M. Paris An. 1216. which was a dangerous president for them to admit who had but even now withstood King Iohns depositing of the Crown in the Popes hands as not being in the power of a King of England to dispose of his Crown according to his own will Yet leaping over all these considerations and looking on Henry the third as the child of a King that by good nouriture might prove a wise and just King they closed about this sparke in hope it might bring forth a flame whereby to warme themselves in stormy times Nor did their hopes soon perish for during his minority the King was wise to follow good councell and by it purged out all the ill humours that the kingdome had contracted in the rash distempers of his fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those councels that suted with the most populer way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware M. Paris An. 1223. And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meere servant and its hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to governe a King should be much more worthy to governe themselves But the Pope put an end to all occasion of question hereabout for by his briefe he declares the King to be sixteen yeeres old and of age to govern himselfe and therefore all Castles are forthwith to be rendred up into the Kings hands M. Paris An. 1223 1224. This proved the rock of offence whiles some obeyed the Pope and were impugners of those that put more confidence in the Castles then in the Kings good nature Hence first sprang a civill broyle thence want of money then a Parliament wherein the grand charter of Englands liberties once more was exchanged for a summe of money Thus God wheeled about successes But the King having passed over his tame age under the government of wise Councellors and by this time beginning to feele liberty it was his hard condition to meet with want of money and worse to meet with ill Councellors which served him with ill advice that the grand Charter would keepe him down make him continually poore and in state of pupilage to this giving credit it shaped an Idea in his mind that would never out for forty yeeres after and thus advised he neglects his own engagement defies the government that by his Royall word and the Kings his predecessors in coole blood had been setled and that he might doe this without check of conscience he forbad the study of the law that so it might die without heire and he have all by Escheat This sadded the English and made them drive heavily the King to adde more strength brought in forrainers and forraine Councels and then all was at a stand The Councels were for new waies The great designe was to get money to supply the Kings wants and as great a designe was to keepe the King in want otherwise it had been easie for those at the helme to have stopped the concourse of forrainers other then themselves from abroad the confluence of the Queenes poorer alies lavish entertainment profuse rewards cheates from Rome and all in necessitous times But strangers to maintaine their own interests must maintaine strangenesse between the King and his subjects to supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a traine of oppressions depending thereon fines and amercements corrupt advancements loanes and many tricks to make rich men offenders especially projects upon the City of London Neverthelesse all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the great Charter and many promises passe from the King to that end and after that oathes and yet no performance this makes the people absolutely deny supplies Then the King pretends warres in France warres in Scotland and wars against the Infidels in the Holyland whither he is going the people upon such grounds give him ayds but finding all but pretences or ill successe of such enterprises they are hardned against supplies of him for the holy warre then he seems penitent and poures out new promises sealed with the most solemne execration that is to be found in the wombe of story and so punctually recorded as if God would have all generations to remember it as the seale of the covenant between the King of England and his people and therefore I cannot omit it M. Paris An. 1253. It was done in full Parliament where the Lords Temporall and Spirituall Knights and others of the Clergy all standing with their Tapers burning The King himselfe also standing with a cheerly countenance holding his open hand upon his brest the Archbishop pronounced this curse ensuing By the authority of God omnipotent of the Sonne and of the holy Ghost and of the glorious mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the holy Martyr and Archbishop Thomas and of all the Martys and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God We Excommunicate and Anathematize and sequester from our holy mother the Church all those which henceforth knowingly and maliciously shall deprive or spoile Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or councell by crossing in part or whole those Ecclesiasticall liberties or ancient approved customes of the Kingdome especially the liberties and free customes which are contained in the Charters of the common liberties of England and the Forrests granted by our Lord the King to the Archbishops Bishops Prelates Earles Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customes or being brought in have observed and all writers of
them irrecoverably Thus favourites instead of Cement between Prince and people becomming rocks of offence bring ruine sometimes to all but alwaies to themselves The King foresaw the storme and thought it safest first to cry truce with the people and come to agreement with them by common consent Prerog Reg. 17 Edw. 2. for the extent of his prerogative in certaine particular cases questionable and this summed up become a Statute for future times to be a ne plus ultra between the King and people Stat. de Homag The like agreement likewise was concerning services of tenants to their Lords and an oath framed to vindicate them from all incroachments Stat. Templar And something was done to calme the Clergy for the demolishing of the Templer Knights but the wound was incurable words are not believed if actions doe not succeed nor will oaths now made to bind Kings Bishops Councellors of State Sheriffs Majors Bailiffs or Judges to justice nor directions for regulating of Courts nor Ordinances against false moneys and weights nor all of them settle the people but they adhere to the Queen burning with jealousie against the King and both her selfe and the Lords with rage against the Spencers The King flies and being forsaken of the people the Lords the Clergy his own sonne and the wife of his own bosome and of God himselfe as the most absolute abject that ever swayed Scepter lost the same and being made a monument of Gods revenge upon inordinate desires in a King and of the English people being enraged not long surviving his demise he died a death meet to be forever blotted out of the thoughts of all subjects but to be had in everlasting remembrance of all Kings For if a Kingdome or Parliament misleads the King at the worst he is but misled by his Councell but if he be drawn aside by favourites he must thanke his own lust in the one he hath but the least share in the burthen in the other he must beare the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the third NOw was prerogative mounted up to the highest pitch or endeavoured so to be either through the weaknesse or power of these Kings of whom the first and last had little to ground upon but their own will and the other I meane Edward the first had more wisdome and power but was otherwaies distracted by forraine and more urgent imployments so as the worke fainted before it came to its full period The contest was between the King and Barons who till those daies were rather the great and richer sort of men then Peeres although they also were of the number I am not so sharpe sighted as to reach the utmost intentions of the Lords but their pretences are of such publique nature as its plaine that if their private interest was wrapped up therein they were inseparable and I shall never quarrell the Lords aime at private respects whenas its plaine the publique was so importantly concerned and yet I will not justifie all that I finde written concerning their words and Actions M Paris An. 1217. The speech of the E. of Cornwall to his elder brother and King Henry the third I will neither render up my Castle nor depart the Kingdome but by the judgement of the Peeres and of Simon the E. of Leicester to the same King That he lied and were he not a King the Earle would make him repent his word and of the Lords that they would drive the King out of his Kingdome and elect another and of the E. Marshall to Edward the first that he would neither goe into Gascoine nor hang such other doe savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some alay if the generall rudenesse of the time the Kings injurious provocations and the passions of colerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the kingdome of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above law the Lords exceeded not their places in pressing him with their councels to conforme to the laws and in maintaining that trust that was reposed in them in keeping off such sinister councels and invasions as might violate the laws and liberties or hinder the currant of justice concerning which I shall shortly state the case and leave it to the censure of others The government of the people of this Nation in their originall was Democraticall mixt with an Aristocracy if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in forraine parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the warre yet in time of peace was not of that heigth as to rule alone I meane that whereas the Lords formerly had the principall executory power of lawes setled in them they never were absolutely devested of that power by the accesse of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concurre the people generally sided with the Lords and so in conclusion the King suffered in the quarrell From this ground did arise from time to time the wanderings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this copartnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherwaies be supposed where Councels are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appeare against these Kings whereof we treat in cases where they appeared against the laws and liberties of the people it was neither new nor so heinous as it s noised for them who are equally if not more intrusted with the Common-wealth then the King by how much the Councellors are trusted more then the councelled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by threats and warre It s as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall adde to what hath been already said first that Knight service was for the defence of the kingdome principally Secondly that the greatest power of Knight service rested with the Lords not onely in
of these persons the one being perpetuall the other temporary therefore is there also by these laws a difference in the disposall of their estates for the tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the naturall affection going along with the blood and this so continued in custome untill these times for though the Miror of Justices saith that Henry the first brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the first speaking of these kind of persons saith Bract. lib. 5. cap. 20. Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their parents and friends Lib. 1. cap. 10 But let the time of the entrance of this law be never so uncertaine it s now a declared law that the King in such cases is the common curator or tutor of all such persons as he is a chiefe Justice rendring to every one his right The King shall have the wrecks of the Sea Prerog Reg. cap. 11. West 1. cap. 4. What shall be called a wreck the Statute at Westm 1. declareth viz. where the ship so perisheth that nothing therein escapeth alive and these are rather in their originall committed to the King as a curator then given him as a proprietor although that custome hath since setled a kind of right which may perhaps be accounted rather a title by estoppell For the fundamentall ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appeare Marlb cap. 17. The heire in Socage tenure shall have an action of waste and an accompt against his guardian for the profits of his lands and mariage The heire in Socage being under age shall also be under custody of such guardian of the next kindred Bracton lib. 2. cap. 37. who cannot challenge right of inheritance in such lands so holden as if the Lands descended from the father side the mother or next of the kindred of the mothers side shall have the custody and so if the Lands descend from the mother the father or next kindred of the fathers side shall have the custody And this custody bringeth with it an authority or power onely and no right as in case of the heire in Knightservice and therefore cannot be granted over as the wardship in Knightservice might but the guardian in Socage remaineth accomptant to the heire for all profits both of land and marriage The full age of tenant in Socage is such age wherein he is able to doe that service which is 14 yeeres for at such age he may b able by common repute to ayd in tillage of the ground which is his proper service But the sonne of a Burgesse hath no set time of full age but at such time as he can tell money and measure cloath and such worke as concerne that calling Merton cap. 1. Widdows deforced of their Dower of Quarentine shall by action recover damages till they recover their Dower cap. 2. They shall also have power to divise their crop arising from her Dower Bract. lib. 2. cap. 40. It was used that the heire should have the crop with the Land but this Statute altered that former usage and yet saved the Lords liberty to distraine if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy West 2. cap. 24. and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilfull in the Law It was none of the meanest liberties of the freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no lesse a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wils and not of the Laws of the Kingdome M. Paris addit Artic. 44. as the complaints of the Clergy in the times of Henry the third doth witnesse Neverthelesse because many mens cases befell not directly within the Letter of any Law for remedy and yet were very burdensome for want of remedy it s provided by this Law that in such emergent cases that doe befall within the inconvenience shall likewise be comprehended within the remedy of that law Aide to make the sonne of the Lord a Knight West 1. c. 36. and to marry his eldest daughter shall be assessed after the rate of twenty shillings for a Knights fee and twenty shillings for twenty pounds in yeerely value of Soccage tenure The uncertainties of ayds are by this Law reduced and setled as touching the summe and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular summe hereby but also the age of the sonne when he was to be made a Knight viz. at the age of fifteen yeeres too soon for him to performe Knightservice but not too soone for the Lord to get his money And the daughter likewise was allowed to be fit for marriage at seven yeeres of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gaine that made the Law and it was not amisse to have the ayd beforehand though the marriage succeeded not for many yeeres after and if the Lord died in the interim the executors having assets paied it or otherwise his heire CHAP. LXVIII Of Courts and their proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of latter birth albeit even they also have been of ancient constitution and divers of them itinerant also and some of them setled in one place The worke of the Justices itinerant was universall comprehending both matters of the Crown and Common-pleas That of oyer and terminer is onely of Crown pleas originally commenced and inquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large worke that is to deliver the Gaols of all criminall offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognisance of Common pleas onely and for the most part are but fo inquiry All which saving the Justices itinerant in ancient use were instituted