sentencing one to suffer death upon the Coroners record without allowing the Delinquent liberty of Traverse This Officer also was made by election of the Freeholders in their County-Court as the Sheriff was and from amongst the men of chiefest rank in the County and sworn in their presence but the Kings Writ led the work CHAP. XXIV Of the County-Court and the Sheriffs Torne THE Government of the County in times of peace consisted much in the administration of Justice which was done in the publick meetings of the Freeholders and their meetings were either in one place or in several parts of the County in each of which the Sheriff had the managing of the acts done there The meeting of the Free-men in one place was called the Folkmote by the Saxons saving the judgment of the honourable Reporter Coke Instit. 2. p. 69. and of latter times the County-Court the work wherein was partly for consultation and direction concerning the ordering of the County for the safety and peace thereof such as were redress of Grievances election of Officers prevention of dangers c. and partly it was judicial in hearing and determining the common Pleas of the County the Church-affairs and some trespasses done therein but not matters criminal for the Bishop was Judge therein together with the Sheriff and by the Canon he was not to intermeddle in matters of Blood yet neither was the Bishops nor Sheriffs work in that Court other than directory or declaratory for the Free-men were Judges of the act and the other did but edocere jura populo yet in special cases upon petition a Commission issued forth from the King to certain Judges of Oier to joyn with the others in the hearing and determining of such particular cases But in case of injustice or errour the party grieved had liberty of appeal to the Kings Justice Nor did the Common Pleas originally commence in the County-Court unless the parties dwelt in several Liberties or Hundreds in the same County and in case any mistake were in the commencing of Suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preheminence In those ancient times this County-Court was to be holden but twice a year by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings special Writ or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the Free-men of the County assembled to learn the Law to administer Justice to provide remedy for publick inconvenience and to do their fealty to the King before the Bishop and Sheriff upon Oath and in the work of administring Justice causes concerning the Church must have the precedency so as yet the Canon-Law had not gotten footing in England The other Court wherein the Sheriff had the direction was in the meeting of the Free-men in several parts of the County and this was anciently and now is called the Sheriffs Torne which simply considered is but a Hundred-Court or the Sheriffs Torne to keep the Hundred-Court It was ordered to be kept twice every year viz. at the Lady-day and Michaelmas or soon after Unto this Court all the Free-holders of the Hundred repaired and there they the Bishop and Sheriff executed the same power and work for kind that they did in the County-Court In this Court all the Suits in the Hundred-Court depending had their determination and others had their commencement and proceedings as well the Pleas of the Crown as others Some have conceived it to be a County-Court or superiour thereto but there being no ground thereof I conceive it to be no other than a Visitation of the County by parcels or in circuit CHAP. XXV Of the Division of the County into Hundreds and the Officers and Court thereto belonging COunties were too great to meet upon every occasion and every occasion too mean to put the whole County to that charge and trouble and this induced sub-divisions the first whereof is that of the Hundred now and also anciently so called but as ancient if not more is the name Pagus for the Historian tells us that the Germans in the executing of their Laws a hundred of the Free-men joyned with the chief Lord per pagos vicosque which first were called Centenarii or Hundreders from their number but used for a title of Honour like the Triarii And as a second hereunto I shall add that testimony of the Council at Berkhamsted which speaking the reduction of Suits from the Kings Court ad pagi vel loci praepositum in other places it is rendred to the Governours of the Hundred or Burrough And at this day in Germany their Country is divided into Circuits called Centen or Canton and Centengriecht and the Hundreders they call Centgraven or Hundred-chiefes whether for Government in time of peace or for command in time of War the latter whereof the word Wapentake doth not a little favour Amongst these one was per eminentiam called the Centgrave or Lord of the Hundred and thereunto elected by the Free men of that Hundred and unto whom they granted a stipend in the nature of a Rent called Hundredsettena together with the government of the same The division of the County in this manner was done by the Free-men of the County who are the sole Judges thereof if Polydores testimony may be admitted and it may seem most likely that they ruled their division at the first according to the multitude of the Inhabitants which did occasion the great inequality of the Hundreds at this day The Government of the Hundred rested at the first upon the Lord and the Hundredars but afterwards by Alfred they were found inconvenient because of the multitude and reduced to the Lord or his Bailiff and twelve of the Hundred and these twelve were to be sworn neither to condemn the Innocent nor acquit the Nocent This was the Hundred Court which by the Law was to be holden once every Month and it was a mixt Court of Common-pleas and Crown-pleas for the Saxon Laws order that in it there should be done justice to Thieves and the trial in divers cases in that Court is by Ordeale Their Common-pleas were cases of a middle nature as well concerning Ecclesiastical persons and things as secular for the greater matters were by Commission or the Kings Writ removed as I formerly observed all Free-holders were bound to present themselves hereat And no sooner did the Defendant appear but he answered the matter charged against him and judgment passed before the Court adjourned except in cases where immediate proof was not to be had albeit it was holden unreasonable in those days to hold so hasty process and therefore the Archbishop of York prefers
tanning of Leather imbasing of Silver selling of Waxen Images and Pictures c. For the superstition of these times was such as these petty Gods were not set at so high a price by the Seller but a higher price by the Buyer The Parliament therefore set a true value of them viz. For the Wax so much as the Wax is worth by weight and but four pence for the godhead So as it seems the Parliament was not very superstitious in their House whatever they were at Church Furthermore the Justices of the Peace had power to punish deceit in Measures Weights Forcible Entries and Detainers In many of which cases the penalty being Fine and Imprisonment became a snare to many of the Justices especially such as were of the greater and higher rank who having Castles of their own under colour of Justice imprisoned Delinquents in their own Castles and ransomed them at their own pleasure which proved a great oppression to the people and occasioned a Law that no Justice should commit any Delinquent to other than the County-Gaol saving Franchises to the Lords Those times are happy when Justice waits not altogether at Court but grows up in the Fields and Justices of Peace as the Kings Arms upon the Royal Mace are terrible onely to the bad and not as they are pictured before an Ale-house-door to invite men to transgress The Laws for the preservation of the peace concern either punishment of Crimes committed or prevention of them from being committed There is a succession of crimes as of Men and Ages because the Scripture tells us that the hearts of all are fashioned alike yet it is with generations as with men some incline to some crimes more than other and that is the reason that the title Treason sometimes is set forth in Folio sometimes in a lesser Volume It is evident is Story that the violent times of Richard the Second had raised the value of that amongst other offences above measure not long before his time his Father had reduced that wild notion of Treason to a certain rule that formerly wandred in a Wilderness of opinions But Henry the Fourth either to save his own stake or to take the people or both reduced it again to the Statute-rule of Edward the Third and made void that Statute of his Predecessors which had made a former Act of Parliament and all the service thereby done Treason The Dimensions of Treason thus clearly limned and declared taught ill-disposed minds to keep out of the Letter and yet to be bold with the Scene Counterfeit Money they durst not yet to diminish the same they thought came not within the Circle and so it became a common grievance till a Law was made That all purposed impairing of Money should be Treason And so the Parliament held forth to all men that they had a power to declare Treason without the bounds of the Statute of Edward the Third The like power it held forth in the time of Henry the Sixth for men knew that Burglary and Robbery were mortal crimes they would no more of that now they devise a way to spoil and prey for themselves and yet neither to rob nor break House To this end they would scatter little Scrolls in writing requiring the party that they intended to prey upon to leave so much money upon such a day at such a place and this was Sub poena of burning the parties House and Goods which many times did ensue upon default made This practice was at once made Treason to prevent the growth of such an evil And the like was done with Robberies and Manslaughters contrary to the Kings Truce and safe-conduct As many or more new Felonies were also now created One was the cutting out of mens Tongues and plucking out of Eyes a strange cruelty And that shewed the extream savageness of those times so much the more intolerable by how much the poor tortured creature could hardly be either Eye or Ear-Witness of the truth of his own wrong A second Felony was the customary of carrying of Wool or Wool-fells out of the Realm to other places except Calis Another Felony concerneth Souldiers which I refer over to the next Chapter The last was Servants plundering their Masters Goods and absenting themselves if upon Proclamation made they appear not this was also made Felony In the next place as touching Forcible Entries and Riots the remedies so often inculcated and new dressed shew plainly the nature of the times These kind of crimes commonly are as the light Skirmishes in the beginning of a War and follow in the Conclusion also as the faintings of a Battle fought till both sides be weary I shall not enter into each particular Statute divers of them being little other than as asseverations annexed to a Sentence to add credit and stir up minding in men that otherwise would soon forget what is said or done The remedies formerly propounded are now resined and made more effectual First In regard of speed which is as necessary in these forces as the stopping of the breaches of Waters in the first act and therefore one Justice of the Peace may proceed upon a holder by force or breaker of the Peace with a Continuando but Riots are looked upon as more dangerous and the first opposition had need be more stiff lest being uneffectual it aggravate the violence and therefore it is required that two Justices and the Sheriff should joyn in the work to carry on the work with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Council or to the Kings Bench if Traverse be made So as though the power of the County be annexed to the Sheriff Jure ordinario to maintain the Peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintain and recover the Peace when it is broken shews more Power but to prevent the breach shews more Wisdom and therefore to all the rest the Wisdom of these Times provideth carefully First For Guards and Watches according to the Statute at Wint. and committed the care thereof to the Justices of the Peace And Secondly Against the gendring of parties for it is commonly seen that such as the admired for excellencies of person are so far idolized of some as that their Gestures Actions and Opinions are observed Tokens of favour though never so small are desired from such and the Idol likes it well gives Points Ribbons it may be Hats and with these men are soon gained to be Servants in the fashion and not long after to be Servants in Action be it War or Treason or any other way This manner of cheat the former times had been too well acquainted with Knights and Esquires are not to be feared in times where the word Lord carries the wonderment away their offences against the Statutes of
Labour or other Contribution none of which ought to be done but by publick Law. And therefore when the Inhabitants of the County of Cornwal were to make defence against Invasion and Piracy from the Coast of Little Britain in regard they were a long slender County and upon sudden surprizals People could not so readily flock together for their joynt defence they obtained an Act of Parliament to give them power to fortifie the Sea-coasts according to the direction of the Sheriff and Justices of the Peace Lastly Wars once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintain them out of his own Treasury till the benefit of them do prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the Eighth both of them at their several times went to Boloigne with their Armies Henry the Seventh with an intent to gain profit to himself by an advantagious peace and had his ends therein and was ashamed to ask aid of the people towards the charges of that War. Henry the Eighth went upon his own charge also with his Army trusting to the Parliament for consideration to be had of his employment wherein his expectation did not fail and in his absence made Queen Katherine General of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loan as occasion should require and to give security of the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent-rolls of these times Nevertheless the War at Sea Infra quatuor Maria was ever reputed defensive as to the Nation and under the publick charge because no War could be there but an Enemy must be at hand and so the Nation in imminent danger and therefore the maintenance of the Navy-Royal in such cases was from the publick Treasury To conclude therefore if the Parliament and Common Law in all these Cases of Levies of men for War payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Wars at Sea and the deportment of such as are employed therein I say if they give the Law and carry the Supream Directory then certainly the Law rules in that which seems most lawless and though Kings may be chief Commanders yet they are not the chief Rulers CHAP. XXXIII Of the Peace PEace and War originally depend upon the same power because they relate each to other as the end to the means and receive motion from one and the same Fountain of Law that ruleth both in Peace and War. It is very true that several Ages hitherto have been troubled with arbitrary Exhalations and these very times whereof we now treat are not altogether clear from such an air Two Kings we have at once in view both of them of an elate spirit one working more closely by cunning the other more openly by Command yet neither of them pretending so high as to do all or be all in all Peace suited more with Henry the Seventh than with his Son who delighted to be accounted terrible rather than good yet both of them were glad enough to be at peace at home and were industrious to that end though by several means Henry the Seventh pretended Justice and Peace a welcome news to a people that formerly accounted nothing theirs but by the leave of the Souldier and therefore sets upon the Reformation of the Sheriffs Courts in the entring of Plaints and making of Juries suitable to that present time wherein men of Estates were very scarce and much of the Riches of the Nation evaporated into the Wars both Civil and Foreign Although the continuance of that order concerning Juries in the succeeding times of opulency hath brought these Courts into contempt and made way thereby for the Kings Courts to swell in Glory and to advance Prerogative even above it self Secondly he reforms Goals as well in their number as their use During the Civil Wars every small party of men that could get a strong place made the same not onely a Castle but a Goal and usually imprisoned and ransomed at their own pleasure For remedy whereof Henry the Seventh restores all Goals to the Sheriffs saving such as hold by Inheritance and gives power to two Justices of the Peace one being of the Quorum to take Bail in cases bailable and Recognizances of the Peace to be certified at the next Sessions or Goal-delivery Thirdly both Kings concur in providing against such disorders as more immediately did trench upon the publick Peace and reached at the Crown it self by labouring to prevent by severe punishing and lastly by regulating the proceedings of Judicature in such cases These disorders were two inordinate wearing of Liveries and unlawful Assemblies The first being in nature of unlawful assembly of minds and spirits of men the second of their bodies and persons Both these had formerly been provided against but the Judges of the Common Law unto whose Cognizance these Crimâ— were holden did restrain their punishments to the rule of the Common Law then thought to be too facile and mean for disorders that did flie at so high a pitch and therefore they are reduced before a higher Tribunal as matter of State as hath been already mentioned The severity of punishment consisted not so much in aggravating the Pain as the Crime matters of injury being made Felonies and those Treasons This Crime of Treason at first it concerned matters acted against the Nation afterwards it reached to matters acted against the King now it reacheth even to the very thoughts and imaginations of the heart not onely of bodily harm to the King but of the Queen or their Heirs apparent or tending to deprive them of their Title of Name of Royal Estate This Crime was formerly made but Felony by Henry the Seventh and then onely extended to such offence committed by one of the Kings Houshold against the Person of the King or a Lord or any of the Council Steward Treasurer or Controller so as the Person of the Queen was not then in the case and yet then newly Crowned and at that instant bearing in her Womb the Royal Seed which was then the onely earnest of the stability and glory of England and therefore it is a subject of wonderment unless it were out of extremity of Jealousie lest he should seem to make too great account of her Title and thereby disparage his own And then is it a piece of wit but not without weakness for he that is jealous of the slightings of other men shews himself unresolved in his own pretensions Now Henry the Eighth not onely raised the price but added to the thing and not onely putteth the Queen but the Prince or Heir
and imprisoned Before this Law this crime was but finable unless the fact was committed upon a Virgin for then the member was lost And this was the Saxons Law but the Normans inflicted the loss of the member upon all Delinquents in any Rape Nor was this made Felony by any Law or Custom that I can finde till about these days It is true that Canutus punished it capitis aestimatione by way of compensation which rather gives a rule of damages to the party wronged than importeth a punishment inflicted for an offence done against the Crown as if it were thereby made capital But for the more certainty of the penalty another Law provideth that if the Rape be committed without the Womans consent subsequent she may have an Appeal of Rape And though a consent be subsequent yet the Delinquent upon indictment found shall suffer death as in the case of Appeal But if a Wife be carried away with the goods of her Husband besides Action of the party the King shall have a fine If the Wife elopeth she shall lose her Dower if she be not reconciled before her Husband's death All which now-recited Provisoes are comprehended together in one Chapter and yet the Chapter is partee per fess French and Latine So far thereof as concerneth death was written in French being the most known Language to the great men in general many of whom were French by reason of the interest that Henry the Third had with France in his late Wars against the Barons It was therefore published by way of Caveat that no person that understood French might plead ignorance of the Law that concerned their lives The residue of that Chapter was written in Latine as all the other Laws of that Parliament were upon grounds formerly in this discourse noted One Proviso more remaineth which is also comprehended in the same Chapter with the former viz. Any person that shall carry away a Nun from her house shall suffer imprisonment for three years and render damages to the house This crime was formerly onely inwombed in the Canon-Law and now born and brought forth into the condition of a Statute-Law rather to vindicate the right of the Freemen than in any respect had to the Clergie who had been very bold with the liberty of the Freemen in this matter For Archbishop Peckham not a year before the making of this Law for this offence had excommunicated Sir Osborn Gifford nor could he get absolution but upon his Penance First he was disciplin'd with rods three times once in the open Church at Wilton then in the Market-place at Shaftsbury and lastly in the publick Church there Then he must fast divers moneths Lastly he must be disrobed of all Military habiliments viz. Guilt Spurs Sword Saddle golden Trappings and to use no brave garments but russet with Lamb and Sheep-skins to use no Shirit nor take up his Order again until he had spent three years Pilgrimage in the Holy Land and unto this Penance the Knight by Oath bound himself A strange power and to repress which it was time for the people to look about them and rather to punish Delinquents themselves than to leave it to the will of such men as never had enough Concealment or neglect of apprehending of Felons punished by Fine and Imprisonment In those ancient times pursuits of Felons with Hue and Cry were made by Lords of Manors Bailiffs of Liberties Sheriffs and Coroners whereas now they are made by Constables See more in the Chapter of Peace Escapes also were punished with Fine and Imprisonment and in some places the Lord had the Fine in other places the Sheriff and in some cases the King yet in no case was any Fine assessed or taken till the Trial before the Justices Persons defamed for Felony not submitting to Trial by Law shall be committed to close and hard Imprisonment It hath been accounted an extream construction of this Law and questionless so it is that this Law should warrant that punishment of pressing to death which hath been of later times more constantly used than former times ever knew of for though it be granted that some trick of torture was sometimes used even before the Normans times and so might now and then leave some few examples after the Norman times yet did the Law never patronize such courses especially if the death of the party suspected ensued thereupon but accounted it Manslaughter And the end of this Law was not to put a man to death but to urge him to confess and so Briton saith Such as will not submit to Trial shall be put to Penance till he shall pray to be admitted thereunto and therefore the Penance then used was such as did not necessarily infer death nor was it a final Judgement in the Trial but onely a means thereto and therefore it might rather consist in denial of conveniencies than inflicting of pain Now in what cases it was used may be understood from the manner of the Indictments in those days whereof besides Appeals by the party some were of particular fact done others onely of a Fame and it may be conceived that the course in the second was that if a man would not submit but would stand mute he was put to this kind of Imprisonment for the discovering Law was by Henry the Third taken away But if the Delinquent was positively accused of a Felony and thereupon indicted by a witness of the Fact and then if the Delinquent would not submit to his Trial by Law in such case the final Judgement was to die Onere fame c. because in the one was a Fact affirmed against him by a Witness and in the other onely a Fame or suspicion which is not pregnant against the life of a man. But this manner of Indictment being now laid aside and all proceedings being upon a Fact affirmed against the party I conceive this Law of no use at all in these days Bail shall not be allowed to Outlaws fore-jured Thieves taken in the act notorious Thieves appealed persons burners of Houses breakers of Prison false Coyners counterfeiters of the Broad-seal prisoners upon excommunication open Malefactors and Traitors against the King. The six first are in nature of persons attainted either upon their own confession or such manifest Evidence as in common reason cannot be gainsaid all which were before this Law under bail yea the last of all although the most heinous of all was in the same condition As touching breakers of Prison in these times it was Felony for what cause soever they were committed and therefore their imprisonment was without bail for whoso makes no Conscience of breaking the Prison his credit will little avail Yet it must be acknowledged that the Law imprisoned few without bail in those foregoing times but in case of Felony or Execution but afterward the cases of commitment being ordinary even in matters of mean process and because mens credits
wounds the heart and being of as little use in a Commonwealth as of benefit therefore is laid aside nor need I to speak any more concerning it There is one thing more somewhat like a Torniament but that it is in good earnest and that is called Duel This cometh likewise within the Cognizance of this Court but in a Ministerial way and as subservient to the Common Law in cases of Appeal and Right Hereof needs likewise little more than the naming and therefore I shall leave the Reader that would understand the particular managing thereof unto the discourse compiled by the Duke of Gloucester in Richard the Second's time Lastly As touching the antiquity of this Court though it may be great yet the power thereof was doubtful and scarce taken notice of in any publick Act of State till about these times whenas a complaint was made by the Commons for the encroachment of that Court upon the Liberty of People and bounds of the Courts of Common Law. Nor is it strange that such unquiet times brought forth such Precedents but much more strange that the Common Law held up its head against such violent irruptions of War. CHAP. XII Of the Peace YOu have seen the Kingdom in Armour now see it in Robes and you will say that its Majesty therein is as grave as it was in the other brave It is true the tempers are so contrary as it may be wondred how one and the same should be wise and willing for both but when God will do much he gives much and can make a People as one man like unto Caleb fitted both for War and Peace Besides the Times were now much conducing hereto It is vain to endeavour to allay Humours in the Body which are maintained by Agitation they must be purged out or the whole will still be endangered and therefore although Kings hitherto did endeavour to establish a peaceable Government yet being led by ill Principles of private Interests they laboured to little purpose But now the Scene is altered and one wise moderate King that was as wise as valiant did more than they all And first set a rule upon his own desires contenting himself with the condition of an English King and then upon his people making them contented with the condition of English men The order herein was no less observable for the former wrangling Times having trained up the mindes of men in a tumultuous way nor could they skill to pace in the steps of Peace the King led them into Foreign parts to spend their heat till being either weak or weary they are contented to return home and study the happiness of a quiet Life These men thus ordered the rest at home are made more cool like a Body after Physick and all are now contented to submit to Law and Magistracy 〈◊〉 fitting time now it was for Justices of Peace to come upon the Stage in their best garb For though the work was more ancient yet like some loose Notes laid aside in several places it was not to be found but at a distance and after long delay But Edward the Third sums up all into one brief and brings a compleat Model thereof into the World for future Ages to accomplish as occasion should lead the way The course was now established to have Justices setled in every County there to be resident and attending that Service First they were named Guardians or Wardens of the Peace but within a few Years altered their Title to Justices First they were chosen out of the good and lawful men of each County After that they were two or three chosen out of the worthiest men and these were to be joyned with Lawyers Then was one Lord and three or four in each County of the most worthy men adjoyned with Lawyers Afterward in Richard the Second's time the number of the Justices in each County might attain to the number of Six and no Steward of any Lord to be admitted into the Commission but within half a year all is at large so be it that the choice be out of the most sufficient Knights Esquires and Gentlemen of the County Again within two years the number in each County is set at Eight yet in all these the Judges and Serjeants were not reckoned so as the work then seemeth not so much as now a days although it was much of the same kind and yet it grew up into that greatness which it had by degrees Before they were setled by Edward the Third there were Custodes pacis which might be those whom we now a days call the High Constables of the Hundred whose work was purely Ministerial Afterward about the second year of Edward the Third the Guardians of the Peace had power of Oyer and Terminer in matters of riding armed upon the Statute 2 Edw. 3. After that they have power of enquiry by Indictment in certain Cases within four years after they have power of Oyer and Terminer in Cases of false Jurors and Maintenance and about ten years after that they obtained like power in matters of Felony and Trespass The way of Commissions in case of Life and Member thus opened another occasion of Commission offers it self for a determinative power in case of offences against the Statute of Labourers and the Cognizance hereof is soon setled upon Commissioners in the Counties specially chosen for that Service which questionless as the Times then stood was as commendable work as it was necessary For Souldiers were so many that Labourers were very few and those that once are accustomed to Arms think ever after meanly of the Handicraft nor will they ever stoop thereto after their Spirits are once elevated by mastery of Adventures And secondly those few Labourers that remained of the Sword Plague and other disasters of these wasting times understood their advantage and set a value upon their Labours far above their merit apprehending that men would rather part with too much of a little than to let their work lie still that must bring them in all they have But these Commissioners lasted not long though the work did The Justices of Peace are looked upon as meet for that service and it is a vain thing to multiply Commissions where the work may be done by one that before this time had obtained an additional Cognizance of all Causes of Riots Batteries wandering dangerous persons and offences in Weights and Measures and in Purveyance To them I say all this work concerning Labourers is also committed by the Parliament and herewith a way was laid open for Crimes of greatest regard under Felony to be determined by Trial in the Country according to the course of Common Law. The issue of all which was not onely ease to the people but a great escape from the rigour of the Council-Table in the Star-chamber and the Kings Bench at Westminster on the one side and also
from the gripe of the Clergie on the other who hitherto held the Cognizance of the Markets in Weights and Measures to themselves This model so pleased all men that Richard the Second that was pleased with nothing but his own pleasure gave unto the Justices of Peace yet further power to execute the Statute at Northampton against riotous ridings and to settle the Wages of Labourers and Servants to punish unlawful Huntings by the meaner sort of people and regrators of Wool false Weights in the Staple unlawful wearing of Liveries and unlawful Fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of Peace grown to that heighth in these and other things that it undermined not onely the Council-Table and Kings Bench but the Commissions of Gaol-delivery and of Oyer and Terminer so far forth as their work was much less than formerly For Neighbours in cases of crime are better trusted with the Lives and Estates of men than Strangers so as in all this the people are still the gainers The manner of Judicature by these Justices of the Peace still remains nothing appears by any Statute in these times that one Justice of the Peace might do alone but record a forcible Detainer although questionless in point of present security of the Peace and good Behaviour by the intent of the Statutes he might do many things but in Cases of Oyer and Terminer all must be done in publick Sessions which the Justices of the Peace had power to hold by Commission onely until the Thirty sixth year of Edward the Third and ever after that they held their Sessions by vertue of the Statutes and had power to determine divers things in their Sessions according to discretion These were remedies after the Fact now see what preventing Physick these times afforded One thing that much irritated the spirits of men into discontents was false News or slanderous reports raised and spread amongst the great men For in these Times the Lords were of such a considerable power as the vexation of one Lord proved the vexation of a multitude of the meaner sort And though the Statute of Westminster the 1. formerly had provided against such Tales yet it touched onely such as concerned discord between the King and people although by implication also it might be construed to extend further But Richard the Second willing to live in quiet that he might enjoy his pleasure would have the people know their duties in plain words and agreed to a Law That all such as published such false News tending to sow strife between the Great men should be imprisoned until the first mover was found and if he were not found then the Relator should be punished by advice of the Council So much power was then given to the Council whatever it was Thus the seed was choked or was so intended to be though every passion was not thus suppressed For some angers conquer all fear and will hold possession come what will. In the next place therefore provision is made against the first Actings in sorting of parties by Tokens and Liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrels upon pain of Fine and Imprisonment and the Trial to be before the Justices of Assize which it seems was in affirmance of former Laws as by the Preamble of the Statute doth appear though the Laws themselves are not extant About Fifteen years after it was by sad experience found that the Lords maintained quarrels by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their menial Servants and it is ordered that the Justices of the Peace shall make enquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of Parties after they are sorted For the humours may so abound as nothing will keep them in they must either break out into a sore or a long sickness of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all persons to ride armed unless in some particular cases of executing Justice or guarding the person of the King or his Justices and suchlike And if men will be so adventurous as to outâ—dare Law by publick force Troopings together and riotous Ridings another course is taken not by Commission of the Peace but rather of War directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them until the Gaol-delivery though no Indictment be found thereof until the Gaol-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additional power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the Power to the Commission and be it a Commission for Peace or War it is originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous ways Viz. Castles and Gaols out of the Custody of private hands and restoring them to their Counties For Gaols and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of War from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaol delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Asylum to defend them against the Law. And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoke of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriff's Custody by Act of Parliament who questionless have the power to dispose of all places of strength whether in order to Peace or War and could not dispose them into a more safe and indifferent hand than the Sheriff's who is as well the King's Officer as the Kingdoms Servant and much intrusted by the Law in the execution of its own power And thus is this Nation now prepared for a setled Peace a condition that is long in ripening and soon rotten unless it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he enforces into Foreign Countries and himself holds on his career over Hedge and Ditch into Ireland where under pretension of holding possession of that Kingdom he lost England and whilst he plays
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
Edward the First and Edward the Second Succession 129 c. Power in Ecclesiastical matters 140 c. 145 In Civil affairs 173 c. 199 c. Knight-service amongst the Saxons 47 Marriage 91 126 159 Acquittal 93 Widows 160. L. LAnguage endeavoured to be changed by the Normans 101 Lashlight amongst the Saxons 62 Lecturers amongst the Saxons 18 Leet amongst the Saxons 48 Legierwit amongst the Saxons 62 Livery and seisin amongst the Saxons 67 London 161 Lords day maintained by the Saxons 61 By the Normans as plea of the Crown 86 Lords their Councils amongst the Saxons 38 52 From the Conquerour's till Henry the Third 107 Lorica what it is 193 Lucius 5 c. Luminaries amongst the Saxons 20 Lunacy vide Fools M. MAgna Charta 107 Renewed with the Curse 130 Stat. c. 158 Cap. 35. 152 Cap. 37. ibid. Mainpernours by the Saxons 53 54 By the Normans 94 Maims punished by the Saxons 62 Mambota amongst the Saxons 61 Mannors amongst the Saxons 46 Normans 83 Man-slaughter punished by the Saxons 61 Normans 87 After 121 Manumisson 85 Marriage-portion vide Dower Marriage vide Knights-service Merchants Mag. Charta 170 Marches amongst the Saxons 45 Normans 82 Markets amongst the Saxons 49 Normans 89 Vide Townships Marshals Courts 178 Matrimonial causes amongst the Saxons 26 Medietas linguae amongst the Saxons 57 Metropolitan amongst the Saxons 15 Micklemote amongst the Saxons 36 The Primacy of Canterbury setled there 22 Mills tythed 149 Militia amongst the Saxons 39 The Normans 95 During the Kings next ensuing 127 During Henry 3. Edward 1. Edward 2. 184 Mint amongst the Saxons Normans 85 Monastery admission 114 Mortdancester 123 163 Mortmain 152 Mortuary amongst the Saxons 20 N. NEws scandalous 182 Night-watches by the Normans 88 After 190 Nobility amongst the Saxons 33 From the Normans times 107 From King John's time 137 Normans their Title 70 c. Not Conquest 97 Novel disseisin 124 163. O. OBlations cognizance 146 Odio Atia 168 c. Officers power greater than Kings 108 Ordeal amongst the Saxons 55 Ordinaries intestate 144 Outfangtheoff amongst the Saxons 46 Ostiares amongst the Saxons 18 Oaths 153 169 P. PAlatine county amongst the Saxons 45 Parishes amongst the Saxons 22 Parliaments 75 173 Parks trespasses 183 Passage 170 Peace amongst the Saxons 62 The Normans 87 After 188 Penal Laws Saxons 60 Normans 86 After in the time of Henry 2. 120 After 179 Perjury punished by the Saxons 25 63 Peers amongst the Saxons 58 Peter-pence amongst the Saxons 20 The Normans 86 Pledges 94 Plough-Alms Saxons 20 Pope's power 12 110 114 Oppressions of the Clergie 140 Prelacy in England not till Constantine's 7. came from Rome by Austin 13 c. Suddenly grown 27 Prâ—cipe Mag. Charta 167 Priors vide Abbots Presbyters amongst the Saxons 17 Presentment amongst the Saxons 54 Priority vide Tenure Prohibitions 142 145 Protector 130 Provinces amongst the Saxons 22 Purveyance 152 165 c. Q. QUare Clausum fregit Saxon 63 Quare excommunicavit 141 Quare non admisit ibid. Quarentine 160 176 Quo warranto 152 R. RAnsom 59 162 Rape Norman 88 After 121 c. 180 Reasonable part 160 165 Vide Dower Redemption vide Ransom Redisseisn 183 Relief Norman 90 After 125 Religious houses vide Abbeys Replevy Norman 89 After 161 Richard the First 105 Romans entry 3 The Papalty with seven degrees of their Church-Officers 18 Seven sorts of Church-maintenance 22 Romescot Romesfeogh vide Heordpenny Robbery punisht by the Saxons 63 By Normans 88 After 121 122 180 190 S. SAbbath-day Saxon-Law 61 Sacriledge Saxon-Law 25 Sanctuary 87 114 150 Saxons in England mingled 56 Seal vide Deeds 67 Sheriffs Saxon 40 Extortion 172 179 Simony punished by the Saxons 26 Sorcery vide Witchery Soul-shot Saxon 20 Socage Saxon 48 Steven his government 103 Stat. Magna Charta vide Magna Charta Merton cap. 1 2 6 7. 160 Cap. 1. 176 Cap. 3. 183 Cap. 9 157 Cap. 10. 172 Cap. 11. 183 Marlbridge cap. 1 2 3. 161 Cap. 4. ibid Cap. 5. 175 Cap. 8. 183 Cap. 9. 162 Cap. 10. 142 172 Cap. 15. 162 Cap. 16. 163 Cap. 17. 176 Cap. 19. 164 Cap. 20. 163 Cap. 21. 162 Cap. 22. 162 Cap. 25. 179 188 Cap. 29. 142 West cap. 1 2 5. 143 c. Cap. 3. 181 189 Cap. 4. 176 Cap. 6. 164 Cap. 9. 181 Cap. 10. 179 Cap. 11. 168 Cap. 12. 181 Cap. 13. 180 Cap. 14. 172 Cap. 15. 182 Cap. 16. 162 Cap. 20. 183 Cap. 22. 160 Cap. 23. 179 Cap. 32. 166 Cap. 33. 172 Cap. 34. 182 Cap. 36. 178 Cap. 51. 163 Bigamy 154 c. Gloucest cap. 1. 164 Cap. 5. 160 Cap. 6. 163 Cap. 8. 179 189 Cap. 9. 168 De Religiosis 153 Westm. 2. cap. 13. 172 Cap. 16. 160 Cap. 19. 144 Cap. 24. 178 Cap. 26. 183 Cap. 29. 168 178 Cap. 30. 164 Cap. 33. 153 Cap. 44. 180 Winton 189 c. Circumspecte agatis 145 c. Quia emptores 172 De Judaismo 171 Quo Warranto 152 De vasto 160 De consultatione habenda 148 De Wardis 160 Artic. super Cart. cap. 2. 166 Cap. 3. 178 Cap. 9. 179 Cap. 12. 163 Cap. 13 14. 173 Cap. 15. 178 Cap. 18. 160 Conjunct feoffat 164 Amortizand terris 153 Asportat bonis Relig. 152 De militibus 184 Artic. Cleri 137 148 Vicecomit 137 172 179 De prisis bonis Cleri 137 152 Prerog Reg. 137 Cap. 3 13. 160 Cap. 7. 172 Cap. 9. 175 Cap. 11. 176 Cap. 14 16. 167 Sub-Deacons 18 Suit of Court 125 Vide Mannor Synods Briton 7 Saxon 23 Disadvantages to Prelacy 27 Norman 77 Without the Laity 117 Power 154 c. T. TAil Saxon Law 66 Taxes 173 Vide Free-men Tenures vide Mannor Normans changed them not 100 Tenures by several Lords priority 124 By Escheats 171 Term Saxon 68 Testament Saxon ibid. After 126 c. Thefts cognizance 121 222 Tythes original 19 Cognizance 27 Normans 86 111 148 149 Torn Saxon 41 173 Torture amongst the Saxons 55 Townships and their Courts Saxon 49 Normans 83 Treason punished by Saxons 61 After 121 Trover of Goods 89 Troth-plight 111 V. VAcancies of Churches 111 c. 115 Vacation vide Term. View of Pledges Saxon 48 Norman 83 After 164 173 Villains Saxon 34 Normans 85 Violence done to Clerks 146 Use in deeds of Conveyance Saxon 67 Usury 171 W. WArdship 92 126 160 169 Warranty Saxon 67 Wears 167 Wera wergilda Saxon 62 Weights and Measures Saxons 28 Normans 88 168 Widows vide Socage and Knight-service William the First 70 c. William Rufus 73 Wife Saxon 62 Will vide Testament Witnesses deeds Saxon 67 Witchery 25 Punished by Saxons 60 Wita Saxon 62 Worship Saxon cognizance 24 Wrecks 176. AN Historical and Political Discourse OF THE Laws Government OF ENGLAND CHAP. I. Of the BRITONS and their Government THIS is Britain or rather that part thereof in after-ages called Saxony and England from the peoples Names transplanted thither The Britons to lay aside all conceipts of Fame I take to be
in force although many of them had their original from the Saxons One God must be worshipped and one faith of Christ maintained throughout the whole Kingdom This is found amongst the Laws of the King William published by Mr. Selden and was for substance in the Saxons time saving that we find it not annexed to the Crown summarily until now so as by this Law Heresie and Idolatry became Crown-pleas And the like may be collected concerning Blasphemy concerning which it is said as of the Servant's killing his Lord that it is impardonable nor could any man offend herein but it endangered his whole estate The trial of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and possibly in the County-court of the Torne where the Bishop was present Jura divina edocere Peter-pence Ciricksceat and Tythes must be duly paid These are all Saxon Laws united to the cognizance of the Crown as formerly hath been shewed Only the first William especially provided that in case any man worth Thirty pence in Chattels did pay four pence for his part it should be sufficient both for himself 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 as to the future custom which now began to alter according to the increase or wane of the Moon I do not find 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 mean to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their own 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 Temporal power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such privileges in particular yet could not such Grants create such immunities contrary unto or notwithstanding any publick Law of the Kingdom and therefore the Monasteries had their foundations confirmed by Parliament or general assembly of wise men if the first foundation was not laid thereon Working upon the Feast-days punished by Fine Before this time no days for Solemn Worship of God were acknowledged by the Law of the Kingdom but the Lord's days By this all days celebrated or instituted by the Church for that purpose are defended by the civil power and breach of the holy observation of these days made enquirable and punished amongst other pleas of the Crown Breach of the Peace Bloodshed and Manslaughter punished by Fine This was the ancient Law of the Saxons and was continued without alteration till about Alfred's time whose zeal against blood caused Murther to be punished with death but the Danes bringing in a moderation if it may rightly be so called are now seconded by their kindred the Normans who will not admit of punishment by death partly because being a warlike people bloodshed might seem to rank itself under the Regiment of valour and partly because they owed much to that Title for the possession of all that they had gotten in England And to prevent scandal entring upon the rear opinion stept in that a miserable life was more penal than death and therefore in crimes of the deepest die they came to fine and loss of Member and which course prevailed most either to stop or enlarge the course of that sin was left to the disposition of such as intended to make trial But in matters of less malignancy the purss rather smarted than the body wherein they proceeded so far as to punishment of death by violence yet was not the fine to be measured by the judgment of the mercy or rigour of any person but only of the Law itself which set down in certainty both the nature and quantity of the fine and left that memorial upon record of a good mind at least to an equitable and just Government In all these cases of breach of peace the King's Court becomes possessed of the right of cognizance and the peace is now called the King's peace not so much because that it is left only to his providential care to maintain as because the fines for most of those crimes pertained to the King for otherwise there is a sort of crimes that are contra pacem vicecomitis as will be more cleared hereafter I shall conclude this subject with these three Observations First that the Laws in those ancient times of the Normans were so general as they then made no difference between places or persons but whether the peace was broken upon holy or common ground or upon a Lay-man or one in orders the Lay-power seized upon all The second is the care they had for apprehending of the offenders in this kind If the party slain were a Norman or Frenchman the Lord of the Manslayer was charged to have him forthcoming within a certain time or pay the Kings Fine of 46 Marks so long as he had wherewith to satisfie and for what remained the whole Hundred was charged But if the party slain were of any other people the Hundred was immediately charged with the Manslayer and must bring him to answer within a certain time or pay the Kings fine The third and last is the care they had to prevent breach of peace for the future first in setling of night-watches by all Cities Burroughs Castles and Hundreds in such manner as the Sheriff or chief Officers by Common-council shall advise for the best safety of the Kingdom Secondly in forbidding entertainment of unknown persons above three days without surety for their good abearance or becoming their pledge for the publick safety nor to let any persons pass away without testimony under the Ministers and Neighbours hand of their good carriage A Man committing Adultery with a Married Woman shall forfeit to his Lord the price of his life This made the crime enquirable at the common-Law as an offence contra pacem Domini but afterward it was sinable to the King and enquirable amongst the pleas of the Crown by the Law of Henry the first Force upon a Woman to the intent to Ravish her is finable but if a Rape be committed it shall be punished with loss of Member The crime and offences against this Commandment were always punished in the Temporal Courts by Fine at the least and are still in the Normans time prosecuted in the same way notwithstanding the growing authority of
It seemeth also that the loss not onely of Chattels and Goods but also of Lands c. extended to Outlawries I conceive in case of Felony and the King's Pardon in such case could not bind the Lord's right of Escheat although it might discharge the Goods and the year and day whereunto the King was entitled which case alone sufficiently declareth what power Kings had in the Estates of their Subjects Manslaughter made not bailable This was Law in Henry the second 's time although it crossed the Norman Law and questionless it was upon good ground for the times now were not as those in the Conquerour's times when shedding of Bloud was accounted Valour and in most cases in order to the publick service And now it seems it was a growing evil and that cried so loud as though in case of Treason bail might be allowed yet not in this case ubi ad terrorem aliter statutum est saith the Author Robbers shall be committed to the Sheriff or in his absence to the next Castelane who shall deliver him to the Sheriff And the Justices shall do right to them and unto Trespassers upon Land. By the Conquerour's Law these Offenders were bailable and I conceive this was no Repeal thereof and the rather because Glanvil alloweth of Pledges in all cases except Manslaughter yea in those Crimes that did wound Majesty it self although they concern the destruction of the King's person or Sedition in the Kingdom 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 Sheriff as formerly hath been observed Fauxonry is of several 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 King's 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 it is clear by Glanvil that falsifying of the Deed of a private person was of smaller consideration and at the utmost deserved but loss of Member Inheritances may not be aliened Inheritances were in those times of Lands or Goods for it was the custom then that the personal 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 Heir and a 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 Heir either by Act in his life-time or any part thereof by his last Will without the concurrence of the Heir 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-kind no more of the Inheritance can be conveyed to any of the Children than their proportionable parts will amount unto This Law of Inheritance was divers according to the Tenure for the Lands in Knights-service always descended to the Heir but such as were holden in Socage passed according to the custom either to the eldest or to the youngest or to all equally And thus stood the general state of Inheritance from the Normans time hitherto seeming somewhat too strait for the Free men that by Law of Property might challenge a power to do 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 stock and yet not fully one might expect a late check to their preferments from the Saxon Parents after a long and fair semblance made of their good Will. The second prejudice was the decay of their Militia which was maintained by Riches more than by multitude of men partly because that rich men are most fearful of offending and therefore ordinarily are most serviceable both with their Bodies and Estates against publick dangers and partly because by their Friends and Allies they bring more aid unto the publick by engaging them in the common Cause that otherwise might prove unsensible of the condition of their Country The Heir of a Free-man shall by descent be in such seisin as his Ancestor had at the time of his death doing service and paying relief and shall have his Chattels If the Heir 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 with-hold seisin the King's Justice shall try 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 tryal of the Heir 's Right by Assize of Mortdancester where formerly no remedy was left to the Heir but a Writ of Right If these three branches be particularly observed they speak of three sorts of Heirs 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 doubtful age Those that are of full age at the death of their Ancestors may possess the Lands descended and the Lord may not disseize him thereof but may be resisted by the Heir in the maintenance of his possession so as he be ready to pay Relief and do service that is due and if the Lord expel him he shall have remedy by Assize Those Heirs that are Minors shall be under the Lord's guardianship till they come to one and twenty years The Heirs of such as hold by Socage are said to be at full age at fifteen years because at that age they were thought able to do that service but the Sons of Burgesses are then said to be of full age when they have ability to manage their Father's Calling such as telling of Money measuring of Cloath and the like yet doth not Glanvil or any other say that these were their full age to all purposes albeit that some Burroughs at this day hold the last in custom to all intents whatsoever The last branch provideth the remedy to recover to the Heir his possession in case it be detained either through doubtfulness of age of the Heir or his Title and it directs the Issue to be tryed by twelve men This tryal some have thought to be of Glanvil's invention and it may well be that this tryal of this matter as thus set down was directed by him yet he useth often in his book the word solet and in his Preface
suit and according to the course of the Admiralty by complaint saving matters of death to the cognizance of the Admiral But this was soon found defective for Justice done in the dark is many times more respective and less respected and therefore within a few years it is provided That Offenders against the Kings Truce upon the Sea or in any of the Ports shall be proceeded against in the Chancery before the Chancellor who hath power given him of calling to his assistance some of the Judges to execute the Statute of 2 H. 5. foregoing by a handsome contrivance For that Statute was once and again suspended for the rigour that was used by the former Conservators who being borderers upon the Sea for their own peace spared as few as they could which had so discouraged the Seamen that the Kingdom had been almost utterly bereaved of its strength at Sea. Nevertheless all this while these Laws were but penal and not remedial for the parties wronged and therefore another Law is made to give the Chancellor and Judges power to make restitution and reparation Thirdly The Chancery gained upon the Ecclesiastical Court. For whereas by the Canon the Church-men were to be judged by their Superiours according to Ecclesiastical and Ordinary Jurisdiction and the iniquity of the times was again returned to that height that Parents could not enjoy their own Children but the little ones were allured stoln away and detained in Cloisters nor did the Church-men afford remedy in such cases A Law was made that upon complaint hereof made to the Chancellor the Provincial should be by him sent for and punished according to his discretion Lastly The Chancery encroached upon the Common Law For whereas the stirs between the two Houses of York and Lancaster began to rise men made their dwellings in places of security and strength Women likewise and other persons flying thither for refuge especially such of them as had most to lose these were contrary to the Law of common honesty urged to engage their Estates unto the desires of such to whom they had fled for refuge and sometimes compelled to marry before they could gain their liberty It was now provided that all such complaints should be heard and determined by the Chancellor Secondly As touching the Ministerial power of the Chancery this likewise was enlarged in making of Process to compel appearance in cases of forcible Entries Murders Manslaughters Robberies Batteries Assemblies in nature of Insurrections Riots and Plunder committed by Servants upon their Masters goods before their Masters death and suchlike offences now grown common and in need of sudden remedy Thus as the work and power of the Chancery grew so did the place and person of the Chancellor grow more considerable raised now from being the Kings Secretary for no better was he in former times to be the Kingdoms Judge and of such trust that although the King might make election of his own Secretary yet the Parliament would first know and allow him that must be trusted with the power over the Estates of so many of the people And therefore did in these times both place and displace him as they saw expedient In a word he is become the Kingdoms Darling and might be more bold with the Common Law than any of his Peers CHAP. XIX Of the Courts of Crown-Pleas and Common Law. AS the Chancery on the one side did swell and increase so was the Kings-bench in an ebb the Council-Table in the Star-Chamber on the one side and the Itinerant-Courts in the Country intercepted and drew away much to their own shares making themselves fat the Kings-bench lean and the Rural Courts for Crown-Pleas almost to starve The Crown-Pleas formerly had been determinable in the Kings-bench Gaol-delivery Oyer and Terminer and many of them by Justices of the Peace Coroners and Sheriff The Gaol-delivery was afterwards united to the Judges of Assize and if one of them were a Clergy-man then to the other and chief men of the County This was useful for the Publick but not beneficial for some men and therefore they laboured for Commissions especially directed to parties that they thought would partake but these were found soon to be dangerous soon taken away and the Gaol delivery restored to the Judges of Assize as formerly The Commissions of Oyer and Terminer were sued forth upon extraordinary Emergencies and Offences wherein the State was much concerned for speedy Execution In former times both these and Gaol-deliveries were but rarely had and then granted unto some that perchance knew more of the Case than before-hand was meet to be known Edward the Third amended this Errour and ordered that no Commissions of Oyer and Terminer should issue forth but unto Commissioners named by the Court and not by the party complaining But the Judges of Assize are now on the growing hand both for Honour Use and Power the rather because their persons are of high repute in the Benches at Westminster which are the Master-pieces of Judicature and their Iters are constant and ordinary Nevertheless the Judges of Assize though they have the Gaol-delivery annexed to them yet have they not that absolute power of the Kings-bench but are still under the rule of their Commission which is not alterable but Parliament and which by it was altered by way of adding new powers as new crimes arose that required the eye of the State to provide And so the Judges of Assize by degrees grew to be the ordinary Administrators of Justice throughout the Kingdom yet holding still forth to them a limited power to hear and determine in some Cases but in others onely to enquire and certifie as in the case of false Returns by the Sheriff of persons elected for the Parliament And also in cases concerning the Statutes of Labourers and unlawful Games and Pastimes in which case the Certificate is to be made to the Chancellor And also in cases concerning Liveries contrary to the Statutes wherein the Certificate is to be made to the Kings-bench which power in this last case continued in that manner by the space of thirty years and then by another Statute they had the power to determine such cases before themselves In like manner they had power to hear and determine cases of falshood in counterfeiting and corrupting of Money by washing clipping c. And also defaults committed by Sheriffs Bayliffs and their Officers against the Statutes of Forcible Entries and of wearing of Liveries as aforesaid These were signs of much confidence and trust in them and yet notwithstanding not in these nor in these were the Penalties by Fine left to the Arbitry of the Judges no nor to the Justices of the Kings-bench but were by the very Letter of the Law determined Nor would the Parliament trust these men with doing Justice in the cases aforesaid in their own Counties where they dwelled nor did it think expedient to
otherwise than in especial Cases And then the conclusion will be that if the King may not give Liveries to the prejudice of the Peace then may he much less break the Peace at his pleasure or levie Men Arms and War when he shall think most meet Take then away from the King absolute power to compel men to take up Arms otherwise than in case of Foreign Invasion power to compel men to go out of their Counties to War power to charge men for maintenance of the Wars power to make them find Arms at his pleasure and lastly power to break the Peace or do ought that may tend thereto and certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array entitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a Precedent or Rule for the future yet will it not follow that Henry the Fourth had or any Successor of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall think meet First As touching the amendment of the Commission it was done upon complaint made by the Commons as a grievance that such Commissions had issued forth as had been grievous hurtful and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges And if it be true that the amendments were in the material clauses as it is granted then it seemeth that formerly a greater power was exercised than by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no grievance to the Subject Secondly If the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not go and then it will also follow that the power of Array is not originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in material parts of the Commission and the powers in execution there whereof no complaint of grievance had been made The issue then is If the King had an Universal power in the Array the Parliament likewise had a general liberty without any restriction to correct that power Lastly Suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings power is established yet can it not be concluded that this power is originally or absolutely in the King. It is not absolutely in him because it is limited in these particulars First It is not continual because it is onely in case of eminent danger Secondly It is not general upon all occasions but onely in cases of a Foreign and sudden Invasion and attempts Thirdly The powers are not undefined but circumscribed 1. To Array such as are armed so as they cannot assess Arms upon such 2. To compel those of able Bodies and Estates to be armed and those of able Estates and not able Bodies to arm such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they strain themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remedial in particular cases yet do I not agree to their Glosses but leave them to the debate already published concerning the same Secondly As this power was not absolutely in the Kings so was it not originally from themselves because they had not the Legislative power concerning the same but the same was ever and yet is in the Parliament Hereof I shall note onely three particular instances First The Militia is a posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprizal granted to such of the people of this Nation as are pillaged by Sea by such as have the King's Conduct or publick Truce And by this Law the party pillaged had power to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellour had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Foreigners were become bold to transgress and the English fearful in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdom was much impaired Nor is the equity of this Law to be questioned for if the Magistrate upon complaint made grants not relief the offence becomes publick and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for relief at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a general War. Two other instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers pay Viz. That Captains shall not abate the Souldiers Wages but for their Clothing under peril of Fine to the King. The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their service be expired unless in case of sickness or other good cause testified and allowed by the Captain and such as shall do otherwise shall suffer as Felons Which Laws could not have holden in force had they not been made by Parliament in respect that the penalties concern the Estates and Lives of men which are not to be invaded but by the Law of the Land. So as both Captains and Souldiers as touching the Legislative power are not under the King in his personal capacity but under the Law of the Parliament Lastly As the rule of War was under the Legislative power of the Parliament so was the rule of