CHAP. LXXI Of the Peace WArre and peace are two births by severall venters and may like the day and night succeed but can never inherit each to other and for that cause they may claime to belong to one father and that one and the same power should act in both and yet it s no good maxime that he that is the chiefe Commander in warre ought to be the chiefe in the order of peace For it naturally befals that warre especially that which we call civill warre like some diseases in the body does rather breed ill humours then consume them and these must be purged by dieting the State and constant course of justice unto which the rugged waves of warre have little or no affinity if not enmity Neverthelesse the wisdome of our ancestors thought it most meet to keep their Kings in worke as well in time of peace as of war and therefore as they anciently referred the principall care thereof to the Lords who together with certaine select persons in every County did administer justice in severall iters or circuits so when Kings had once gotten the name of being chief in civill affaires as they had it in martiall they soon left the Lords behind them who also were willing enough with their own ease and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or commissioners thereto deputed And thus that peace which formerly passed under the titles of Pax Domini pax vice comitis it is pax Regni became by eminency swallowed up in that which was called the Kings peace and the Justices called the Kings Justices and himself flattered into that title of Fountaine of Justice which belongeth onely to him that is The Most High or Chiefe Law-giver The manner how this honourable care of the safety and peace of the Kingdome was imployed may be referred to a double consideration the one in execution of justice upon delinquents the other in preventing occasions of offence or delinquency by meanes whereof the publique peace might be endangered The first was acted diversly according to the present sence of affaires for what was at first done by the Princes in their circuits Tacitus with one hundred of the Commons called Comites and that done per pagos vicesque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chiefe Magistrates of Towns in their courts and Sheriffs in their Tornes as Judices stati for the ease of the people in matters of lesse moment I say I conceive it was in the Torne for I suppose no emergent court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve yeeres of age at the same 52 Hen. 3. Marlb cap. 25. and for the same cause it seemeth that one certaine Torne every yeere was holden for inquiries of homicide unto which all above twelve yeere of age were to come except Barons Clergy and women or otherwise all such had been bound to attendance on every Torne Neverthelesse the worke of the Tornes continued not to heare and determine as anciently they had done For in Henry the thirds time and formerly divers men had prisons to their owne use some as Palatines Mitor cap. 2. Sec. 9. other as Lords of Franchise and others by power and usurpation and had the benefit of all fines incident and by this meanes many were fined that deserved it not Mag. cart cap. 19. and some also that deserved worse to prevent which evill Henry the third tooke away that power of holding Crown-pleas Glocest cap. 8. West 1. cap. 3. And Edward the first tooke away their power to determine escapes and left them onely the power of inquiry and to certifie at the next comming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such coole pursuit Men were still ordinarily imprisoned and so continued oftentimes till the comming of the Justices itinerant For whereas in case of bloodshed the Writ de odio gratia was a remedy the other had no remedy but by procuring a Commission of Oyer and terminer which ordinarily was a cure worse then the hurt Stat. Wint. 13 Edw. 1. As a remedy hereof Edward the first found out the new way of making Justices of peace as may appeare by the Statute at Winton which law being purposely made for the conserving of the peace providing for penalty of crimes already committed as well as for the suppressing of future ordaineth that offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soone made way to resiant And before that Statute it seemeth the King had found out the way Coke Inst 4. p. 176 if that note be true which is left revived into memory by that honourable reporter which relating to the sixth yeere of Edward the first saith that then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Hen. 1. if I mistake not the sence of that clause in his laws concerning vagabonds he ordereth that they shall be carried Iusticiae quae praeest Hen. 1. cap. 58. although the language be not so Clerkly as to speake the sence out Now though their worke as yet was but in triall and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriffe was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriffs Torne and Lords Leets of that little remainder that was left them of judicatory power in matters that were against the peace and made their inquisitory power lesse regardfull and eased the Justices itinerant of much of their work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seemes were jealous of giving the power of determining those offences into any sudden hand To summe up then the first part as touching the punishment of offences against the peace the wheele is now in the turning the Leets and Tornes begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and terminer difused by the bringing in of a new order of Justices for the peace especially appointed And the Parliament as the supreame providors left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the Kings court after that the Common pleas were setled and confined to a certain place The preserving of the peace for the future
rigged according to the Grecian guize it may be well supposed that there is some consanguinity between the Saxons and the Grecians although the degrees be not known The people were a free people governed by Lawes and those made not after the manner of the Gauls as Caesar noteth by the great men Caes com but by the people and therefore called a free people because they are a Law to themselves and this was a priviledge belonging to all the Germans as Tacitus observeth in cases of most publique consequence de majoribus omnes like unto the manner both of the Athenians and Lacedemonians in their Concio Histor Germ. Plutarch vit Solon Lycurg For which cause also I take the Gauls to be strangers in blood unto the Britons however nigh they were in habitation That some matters of action especially concerning the publique safety were by that generall vote concluded and ordered seemes probable by their manner of meeting with their weapons But such matters as were of lesse concernment the Councell of Lords determined de minoribus Principes Albinus Sax. 72. saith the same Authour Their Countrey they divided into Counties or Circuits all under the government of twelve Lords like the Athenian territory under the Archontes Xenophon These with the other Princes had the judicatory power of distributive justice committed to them Tacit. together with one hundred of the Commons out of each division The election of these Princes with their commission was concluded inter majora by the generall assembly and they executed their commission in circuits like unto the Athenian Heliasticke or Subdiall Court Emius which was rurall and for the most part kept in the open ayre in briefe their judicials were very sutable to the Athenian but their military more like the Lacedemonian whom above all others in their manners they most resembled In their Religion they were very devout saving that they much rested in the reverence they bare to their Priests whom they made the moderator of their generall Assembly their Judge advocate and executioner in Martiall Law therein submitting to them as unto Gods instrument They worship an invisible and an infinite Diety mans flesh is their sacrifice of highest account and as often as they make inquiry by lots they doe it with that solemne reverence as may put all the Christian world to the blush precatus Deos coelumque suspiciens and this done by the Priest of the Town if it be in publique causes or otherwise if private then by the master of the family so as they had family-worship as well as publique These things I note that it may appeare how nigh these invited guests resemble the old Religion of the Britons Avent Anal. Bowr 1.10 Bruter in Tacit. 125. and how probable it is that this Island hath from time to time been no other then as a sewer to empty the superfluity of the German Nations and how the influence of these old principles doth worke in the fundamentall government of this Kingdome to this present day These are the instruments chosen by God and called by the Britaines to be their deliverers from their enemies which they did indeed yet not swayed thereto by love of justice or compassion for if writers say true they were no better then high-way men both by Sea and Land Amian but by their love of spoyle and prey and by the displeasure of God against a dissolute people They professe friendship neverthelesse in their first entrance but espying the weaknesse of the Britons and feeling the strength of the Picts and finding the Land large and good they soone pickt quarrels with their Hoast made peace with the Picts and of fained friends becomming unfained foes to the Britons scattered a poore remnant of Christians some to the furthest corners of the Kingdome others into forraine Nations like so many seedesmen to sow the precious seed of life in a savage soile And those few that remained behind profiting under much misery by their doctrine and good example yeelded better blessings unto their new come guests then they either expected or desired And thus the miseries of poore Britaine became riches of mercy to the North and Easterne people and the ruines here the foundations of many famous Churches elsewhere Nor yet was mercy from the Britons utterly taken away nor their blood drawn out to the last drop or their name quite blotted out of the booke of fame for whereas two things make men miserable viz. the heavinesse of the burthen without and the failing of the heart within and Gods ordinary way of redresse of the former beginneth in taking away the later thus dealt he with the Britons for in danger as want of strength breeds feare and that by extreamity dispaire so dispaire oftentimes revives into a kind of rage that puts strength forth beyond reason I say beyond reason for cause cannot be given thereof other then Gods extraordinary dispensation in a judiciary way when he seeth the stronger to wax insolent over the weaker Thus the Britons fled from the Picts so long as they had any hope of reliefe from the Saxons but being become their enemies and pursuing them to the low water marke that in all reason they must either drinke or bleed their last then their courage revived and by divers victories by the space of 200 yeeres God stopped the hasty conquest of the Saxons the result whereof by truces leagues commerce conversation and marriages between these two Nations declared plainly that it was too late for the Saxons to get all their bounds being predetermined by God and thus declared to the world In all which God taming the Britons pride by the Saxons power and discovering the Saxons darknesse by the Britons light made himselfe Lord over both peoples in the conclusion CHAP. V. Of Austins comming to the Saxons in England his entertainment and worke DUring these troublesome times came a third party that wrought more trouble to this Isle then either Pict or Saxon for it troubled all This was the Canonicall power of the Roman Bishop now called the Universall Bishop For the Roman Empire having removed the Imperiall residence to Constantinople weakned the Westerne part of the Empire and exposed it not onely to the forraine invasions of the Goths Vandals Herules Lombards and other flotes of people that about these times by secret instinct were weary of their owne dwellings but also to the rising power of the Bishop of Rome Naucler 505. and purposely for his advancement Who by patience out rode the stormes of forraine force and tooke advantage of those publique calamitous times to insinuate deeper into the consciences of distressed people that knew no other consolation in a plundred estate but from God and the Bishop who was the chiefe in account amongst them the beauty of the Bishop of Rome thus growing in the West made him to out-reach not onely his owne Diocesse and Province but to minde a kind
dignity or title which you will was a plant of that virulent nature that would scarce keepe under-ground in the time of the hottest persecution for Steven Bishop of Rome liked the title of universall Bishop Mag. cent 3. cap. 7. And after a little peace it s a wonder how it grew to that height that it had And no lesse wonderfull that the Saxons gave intertainment to such potentates Much of whose spirit they might have observed in the entrance of their first Archbishop Austen if God had not given them over to thraldome under that mystery of iniquity of sinfull man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godlinesse God manifested in the flesh as it was taught in simplicity by the rurall Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue runne thus It belongs to the Metropolitan Bishop to rule Gods Churches to governe chuse appoint confirme and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to doe And thus though the apparent power of Archbishops was great and unlimited Concil Brit. p. 190. yet what more was wrapped up in that word Churches onely time must declare for it s very likely that in those daies it was not understood yet the practise doth not obscurely declare the matter for before this Law was established by Withered in a Councell wherein Bertnaldus Archbishop of Canterbury was president An. 694. Ant. Brit. p. 55. and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining and removing them as a writer saith Malmsb. lib. 1. cap. 2. Ant. Brit. p. 54. that his rule was no other then perturbatio and impetus animi and his carriage towards Wilfrid produced as a testimony But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdomes in this Island and Kings had no further power then their limits afforded them but there was but one Metropolitan for a long time in all the Saxon territories so as his power was in spirituals over many kingdomes and so he became indeed alterius orbis Papa and it was a remarkable testimony of Gods speciall providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman chaire that they had not torne the European Church into as many Popedomes as Provinces But no doubt God ordered it for a scourge to the world that Antichrist should be but one that he might be the more absolute tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it selfe and it had been contrary to Austins principles to have advanced to Bishopricks men better qualified then himselfe They first ruled the Saxon Church joyntly in the nature of a Presbytery till about sixty yeeres after Austins time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder then all and thereupon Theodore Archbishop of Canterbury first divided his Province into five Diocesses Ant. Brit. 52. Concil Brit. 133. Ant. Brit. 54 Ibid. 53. and by appointment of them Kings and people placed Bishops over each every one of them being of the right Roman stampe as himselfe was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of three hundred yeeres degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their originall condition of meeknesse and humility But it s much greater wonder that they should become so purely ambicious as not to endure a thought of the waies of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct and teach to see the service of God to be diligently and purely administred in publique congregations Concil Brit. 238 246 261. to exhort reprove and by teaching to amend such matters as he should finde in life and doctrine contrary to Religion and accordingly they carried themselves meekly and humbly Mag. Cent. 7. cap. 7. studying peace and truth and meddled not with secular affaires they are now grown up into state and must now ride on horse-backe that were wont to goe on foot preaching the Word Bed hist lib. 4. cap. 3. and must be respected above the ranke of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden sacred as the word of a King Concil Brit. 196. An. 697. sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerkes and religious houses must stoop under their power Ibid. 329. An. 816. their sentence must be definitive and thus advanced they must keep state viz. not go too farre to meet Princes in their approach towards them nor to light off their horses backs to doe Princes reverence at their meeting because they are equall to Princes and Emperours Concil 8. gen constant can 14. and if any Bishop shall behave himselfe otherwise and after the old rusticall fashion for such are the words of the Canon for disgrace done to theitr dignity they must be suspended so as by their own confession Bishops henceforth are Bishops of a new fashion that must incurre a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully ler him peruse the Canon if he please But this is not sublime enough they must be not onely equall but in many respects superiour to Princes for in matters that concerne God Omnibus dignitatibus praesunt and more plainly Princes must obey them Mag. cent 8. cap. 9. Ex corde cum magna humilitate and this was allowed of by Offa the great in a legatine Synod And thus highly advanced Bishops are now consecrated to any worke and make every thing sacred Concil Brit. 182. An. 693. Ll. Sax. cap. 37. Oathes taken before them are of highest moment and therefore the triall of crimes before them and the acknowledgement of deeds of conveyance in their presence are without controll An. 928. Ll. Aethelst cap. 11. Concil Brit. Concil Brit. p. 197. An. 697. Their custody is
15. nor out of the County without allowance of the Sheriffe or other Governour of the same And if any controversie arose between the pledges the chiefe pledge by them chosen called also the Deane or Headburrough may determine the same Ll. Edw. c 20. but this held onely in matters of lighter consequence CHAP. XXVII Of Francheses and first of the Church Franches WE have hitherto trode in the rode way of the government of the Common-weale but private regards have made by-paths which we must trace or else the footsteps in many particulars will remaine unknown These are called exemptions but more ordinarily Francheses from which scarce any part of the Kingdome remained free and are to be considered eithet in regard of the place or person In the later I intend that of the Churchmen whose persons and estates in many particulers were exempted from the civill power of this Kingdom Their persons devoted to a peculiar worke they would have to be under a peculiar Law called the Canon law which at the first extended onely to their own persons and that onely pro reformatione morum Concil Brit. p. 258. for so an Archbishop tels us that it did teach quomodo Canonici id est regulares Clerici vivere debent but when it grew to its full charge it gave a louder report Quicunque aliquid tenuerit vel in fundo Ecclesiae mansionem habuerit extra curiam Ecclesiasticam non placitabit quamvis foris fecerit Ll. Edw. Conf. And thus as Church ground increased by the blind charity of those times so long Churchmen multiplied and the Canon inlarged from the persons of regulers to all Clergymen and from them to their Tenants and neighbours from thence to certain Spirituall or Ecclesiasticall crimes or scandals wherever they were found and wherever it touched it tooke and bound by Excommunication Ll. Edw. cap. 7. and upon significavit being first delivered to Satan they delivered him over to the sentence of the Law to be imprisoned If the offender be out of reach by the space of thirty and one daies he is outlawed so as there 's no way left to escape the Church fury CHAP. XXVIII Of the second Franches called the Marches FRanchises of the place were such as were limited within precincts of place annexed thereto and of this sort first were those of the borders of which those are the most ancient that bordered the Britons now called the marches of Wales in which was a peculiar government so far as concerned administration of justice for otherwise the subjects each of them submitted themselves to the service of their own Prince This was therefore a third different and mixt government agreed upon joyntly between the Britons and Saxons who after a long and burdensome warre wherein both peoples were well wearied by degrees became friends entered traffique and into the strictest societies by marriage Thus finding the sweetnesse of peace they provide against future occasions of strife that might arise in commerce by the justling of two Laws together agree in one law upon a certain number of Judges elected by common consent who were to see to the execution of these Laws as joynt assessors From these as I conceive arose those which are now called the Lords marchers Ll. Aetheld cap. 3. and were at the first twelve in number viz. six Saxons and six Britons It seemeth this form of government was first instituted by Aetheldred and by way of prescription or custome continueth till this day and as it was the birth of truce so for the future became both mother and nurse of peace between those two peoples like the twilight between the day and night untill both were brought under one head and by divine providence setled in a lasting day CHAP. XXIX Of County Palatines OF the same sort of Francheses were these which are called County Palatines which were certaine parcels of the Kingdome assigned to some particular person and their successors with royall power therein to execute all Laws established in nature of a Province holden of the Imperiall Crown and therefore the Kings Writ passed not within this precinct no more then in the Marches These were occasioned from the courage of the inhabitants that stoutly defended their liberties against the usurping power of those greater Kings that endeavoured to have the Dominion over the whose Heptarchy and not being easily overcome were admitted into composition of tributaries and therefore are found very ancient for Alfred put one of his Judges to death for passing sentence upon a malefactor for an offence done in a place where the Kings Writ passed not Miror cap. 5. Sec. 1. and the same authour reciting Another example of his justice against another of his Judges for putting one to death without president rendreth the Kings reason for that the King and his commissioners ought to determine such cases excepting those Lords in whose precinct the Kings Writ passeth not CHAP. XXX Of Francheses of the Person FRancheses of the person are such liberties annexed unto the person as are not absolute Lordships but onely tending thereto and limited within a Precinct but not annexed thereto and these are matters of profit rather then power as those of Bury St. Edmonds Doncaster Dorchester Circester all which were in the Saxon times Miror cap. 5. and these or some of them had juridicall power in cases of felonies and robberies arising within that precinct so as the delinquent was both inhabitant and taken within the same this was called Infangtheoff Infangtheoff and if upon fresh pursuit made by the right owner or possessor the delinquent was taken with the prey in his possession or as the old Dialect is Handhaben Backbearend Ll. Edw. cap. 26 Then was he carried immediately before the Coroner of that liberty and the Sakeber or party wronged made his proofe by witnesses and thereupon judgement forthwith passed without answer and execution immediately ensued Some Liberties had Outfangtheoff Outfangtheoff Bracton lib. 3. tract 2. cap. 35. Briton cap. 15. that is the triall and forfeiture of such delinquents being no inhabitants and yet taken within the liberty or inhabitants and not taken within the liberties but this triall was alwaies by Jury The antiquity of these Liberties are not obscurely manifested in their names and more clearly by the Saxon Laws and Acts Ll. Edw. cap. 21 for it s observed of Alfred that he seised a Franches of Infangtheoff because the Lord of that Franches would not send a felon taken within his liberty for a felony committed without the same to the gaole of the County Miror cap. 5. Sec. 1. as he ought to have done Other Liberties there were granted also by charter a taste whereof may be seen in one grant made by King Edgar to the Monastery of Glastenbury wherein was granted Sack Hamsockne Friderbrece Forstel Teme Flemone Ferdre Hundred Setene Sock Tholl Adae Horda Bufan Orderan Bene Orderan the
which we call suite of Court The Court of Free men was holden from three weeks to three weeks wherein the free men Miror p. 17. Lind. gloss Albin hist Saxon. p. 72. as in the Hundred and County were Judges of the fact and from them named as at this day Court leete or the Court of the Liti or such as are manumitted or free men In this Court all actions or suits between the free men of the same Manor and within the same arising were determined nor could any Court no not the Kings intermeddle with such suits before triall had but by the Lords allowance And upon this priviledge the Writ of right patent was grounded But the full nature of this Court is not within my intention but I must referre the Reader to the Law-bookes F. N. Br. 2. For it was the least part of the worke and power which this Court obtained by continuance of time in regard that manors exceedingly multiplied so as no part of the Land was left free and many one of them extended into divers Decennaries the Lords obtained great power over them View of Frankpledge and had of Kings grants of view of Frankpledge within their severall Lordships and further power of inquiry and punishing of matters of publique nusance and such as were contra pacem coronam which by custome became annexed unto the Court-leete The nusances of Copy-holds being done to disherison of the Lord and not proper for the Court of publique inquiry The Judge of this Court-leet was the Lord or his Steward for the directory part and the Steward was properly Coroner within the Manor to take presentments and certifie them to the Coroner of the County And thus this Court swallowed up much of the power of the Decenners Court in the very infancy so as we finde no footsteps of any Writ of Right to the Decenners or chiefe pledges but contrarywise many views of Frank pledge granted to particular persons in the time of Alfred Miror cap. 5. Sec. 1 and many things done by the chiefe pledges in the Courts of these Manors as is to be yet seen in many ancient Court Rols The other Court which by common right belonged to the Lords of Mannors was that of the Copyholders Court Baron called or rather included under the name of the Court Baron which albeit it is called in the ordinarily stile Curia Baronum yet not so properly as I conceive Co. Instit cap. 57. and it may be by way of mistake for Baronis for if it were so properly united formerly to the Court of Free men as ab excellentiori it alwaies passed under that name yet when that Court is omitted and slipt out of the way the Court of Copyholders that remaineth improperly retaineth the name of that which is gone This Court at the first was intended onely for the Lords benefit and for the Tenants right as subservient thereunto I say the Tenants right not against their Lord for they had no right against him but against any other they had protection of Law both for themselves and their estates and as I said before by custome or rather light of Religion their persons and estates were considerable even by the Lords themselves which also caused a Law to be made ut sic de suis hominibus agant quatenus erga Deum reatum non incurrant Regem non offendant Ll. Edw. which law could never be intended of the free holders for it had been a vain redundancy to have made an especiall Law for that which was provided for by the known fundamentall Law of the Kingdome against which a speedy remedy lay by the Kings Writ And that these men how mean soever had even in those daies a kind of property both in Lands and goods for the Laws though by their antique language darkned Selden Spicil 184. cap. 33. yet plainly speak de terra sua Catallis ejus and if the ancient Germans were so generous to their bondmen surely much rather after their comming into this Island in as much as their service was more and more necessary in agriculture which could never be performed by the natives who were not in their own persons conquered although their land was CHAP. XXXIII Of Townships and their Markets THe next Franchese is that of Towns this was taken up as a birth of warre and nurse of peace for their ancestors liked not to dwell in crowds Tacitus ne pati quidem inter se junctas sedes it being their trade or pastime to warre upon beasts when they found no enemies amongst them This solitudinary custome could not be soon shaken off and might well occasion multitudes of Towns in those times though small ones doubtlesse that writers speake of if true it be that after the wasting times of the Danes and Normans in the Conquerours time were found in England forty five thousand Parishes and sixty two thousand Villages Nor was peace lesse beneficiall to them then they carefull of it for by continuance of peace Husbandry Manifactures and Commerce occasioned people to gather to places commodious for habitation in good soile nigh navigable Rivers or Havens and according to their scituation and trade so they swelled in multitude or decayed some of whom growing more eminent then others more care was had of their government and safety for the later by building of Wals and Castles and for the former by setling a Magistracy peculiar to that place or Township not as so many Decenners but as one body consisting of many members and thus by custome they grew to be Fraternities or Corporations under one Magistrate or head whom they called Alderman and held a Court of Justice at the first holden twice a yeere which was in nature of a Leet with a view of Frank pledge Ll. Canut cap. 44. Miror cap. 5. Sec. 1. Markets as may appeare in the cases of Dorcester Circeter and Doncaster in Alfreds time and herewith they had publique markets which served them for their better convenience This priviledge of Market was a liberty of publique sale and trade in commodities that principally concerne the belly but by common course became a passe for commodities of every kind almost Concerning this liberty I shall desire leave to enterpose this parenthesis ensuing before I proceed in the intended discourse In the first times as every man by common right had property in his own goods so by the same right he had power to alien them to any person at any time in any place by gift sale exchange or other waies and that by such alienation but especially by sale a right was vested in the buyer against all men saving the Eignee right which was recompenced upon warranty and recovery in value and in those daies common sence taught men to buy or sell of or to the next neighbour that would bargaine with them and for want of such occasion to repaire to the next assembly
forefathers recepitque satisfactionem universa Domus Tacitus It would be too tedious to recite all the particular Laws with their changes and therefore they shall be left to the view in the severall Laws of Alfred Edmond Canutus and Edward the Saxon Kings Yet one custome first begun by the Danes Englishire Stamf. lib. 1. cap. 10. Miror cap. 1. Sec. 13. I cannot omit That if a man were found slain whose parents or friends were unknown by common intendment he was to be presumed to be a Dane and then if the delinquent were not taken nor fled to Sanctuary nor known where he is the whole Hundred was amerced for the escape Bracton lib. 3. tract 1. cap. 15 but if the party slain was known to be of English parents it was otherwise This custome lasted long after the Normans time the Dane being onely changed into the Norman Breach of peace Batteries Maimes Imprisonments Alured praes Lam. 19. and was called Englishire Batteries maimes imprisonments and other breaches of peace were punished by fine which they called Fightwitt Grithbrece or Frithbreck and the delinquent ordinarily put in sureties for the peace for future time The fine was increased by the number of delinquents joyning in the fact for if seven joyned it was a riot and the fine was then called Flothbote If the number were five times so many viz. thirty and five then it was a rebellion or warre Secondly the fine was increased by the time or season of the fact as in Lent or while the Army was in the field because in the first case the holy time was prophaned in the second the Country was more endangered when the strength was abroad and the Army might be discouraged at the news of the disturbance at home And therefore the Saxons punished this with death or fine sutable Ll. Edw. c. 31. Ll. Sax. cap. 36. Ll. Inae cap. 6. Thirdly the fine was the greater in case of the excellency of the place where it was holy ground or in the presence of great persons such as the King or Bishop The seventh Commandement Adultery amongst the old Germans was holden a crime of a high nature the penalty of the woman that committed that crime was death I finde not what became of the man in latter times of the Saxons it grew lesse penall Baronus Anal. 745. num 5. Concil Brit. 558. Ll. Canut 50. reg 22. and more common By Alfreds Law it was finable and the fine called Legierwit By Canutus the man was fined or banished the woman to lose her nose eares and her portion Incest was more penall to the man then Adultery and yet it touched not his life Incest Ll. Sax. 48. reg 19. Robbery amongst the Lacedemonians was accounted but a trick of youth the Athenians thoughts were more severe The Germans likewise differed in their censures concerning it The eighth Commandement the Saxons punish it with death but the Angles with fine onely yet Ina the King made it mortall and Canutus followed him therein Lind Ll. Ang. Sax. Ll. Sax. 4. reg 3 Miror 262. Burning of woods Burglary Ll. Edm. cap. 6. Ll. Canut p. 59 Trespasses And Edward the Confessor limited that punishment to thefts of twelve pence in value or above burning of woods was fineable by Inaes law but Burglary was felony In King Edmunds time onely the Danes made it finable possibly being guilty in their own consciences of their own propensity to rapine and plunderings This priviledge of the dwelling house was anciently called Hamsoca or Hamsoken or Hamsokne Trespasses committed upon ground were all comprehended under the generall name of Ederbrece or hedge-breaking and the penalty was not onely the dammage to the party but also fine to the King upon action which in these daies passeth under the name of Quare clausum fregit according to the words of the Writ Ll. Sax. cap. 36. The dammages were more or lesse according to the time or season when it was done for if when the Army was abroad the dammages were doubled and in like manner if done in Lent time If the trespasse was done by a beast the owner must pay the dammages Ll. Inae 56. Ibid. c. 40. But if it were occasioned through the complainants default as through his gap no dammages were paid The constant fine to the King in all such trespasses was by Alfreds law set at five shillings Ll. Sax. c. 36. Other actions also were then used as touching dammage done to goods and actions upon the case for in Alfreds time the Plantiff recovered not onely dammages for trespasses done to possessions and goods Miror p. 301. but also costs for injuries in point of scandall and defamation in case the complainant specially declareth that he is thereby disabled or indammaged in his preferment and maketh proofe of the same suitable unto the forms of our pleadings at this day The ninth Commandement which conclude with per quod c. or deterioratus est c. The Saxons were utter enemies to perjury they punished a Ll. Aethelst c. 10. with eternall discredit of testimony b Ll. Canut c. 6. and sometimes with banishment or with grievous fines to the King and mulcts to the Judge Spec. Sax. l. 3 art 53. For that difference I finde observed in those daies between fines and mulcts albeit the more ancient times used them for one and the same for so the Historian pars mulctae Regi In all these matters where any interest was vested in the Crown the King had the prerogative of pardon yet alwaies the recompence to the party was saved Ll. Edw. c. 18. besides the security of the good behaviour for time to come as the case required CHAP. XLI Of the Lawes of property of Lands and goods and their manner of conveyance THus passing over some tops of Saxon penall Laws besides the general rule or law of eye for eye tooth for tooth c. it now remains as lightly to glance at a few generals concerning the setling and property of possessions in point of title Miror cap. 5. Sec. 1. Concerning which although it be true that the conquerours of this part of the Isle were a body aggregate of many Nations or peoples and so divers customes must necessarily settle by common intendment in severall places according as they chose their habitation Inheritance yet the generall custome of the Germans as touching discent of inheritance was to the eldest sonne For Tacitus speaking of the German Cavalry saith that the horse of the party dead went not to the eldest sonne ut cetera but to the most valiant man amongst them of that linage which words ut cetera doe plainly intimate that other matters of profit passed to the eldest sonne in point of descent Nor can I conceive how men should be induced to conceit that the custome of Gavelkind was the ancient generall custome of
the worke in hand to disclaime that custome which must needs be of infinite consequence in the effecting of what was principally sought after viz. the union of the two peoples Normans and Saxons into one I say it was principally sought after by the Norman conquerour if not led thereto by his own genius yet necessitated thereto by force of reason of state as shall appeare hereafter And what could be imagined a more ready way to stay the effusion of blood and all other unhappy events of enmity then by taking away enmity it selfe or a more speedy and certaine course for union then to reduce the men and women of each people to mutuall society and to seale up all by a lasting bond of marriage or greater encouragement for the comfortable proceedings therein then the setling of the constant maintenance of the wife in case of survivorship by the law of dower of the Lands and Tenements of the Husband Lindenbrog Concil Aenham c. 19. Ll. Edm. which was so full of contingencies and uncertainties in the portion of goods that was by the Saxon law appointed to the wife in such case Nor was this all for by marriage thus made to the Normans they had a great hold not so much over the English as in the English and that not onely during coverture but by reason of this title of Dower the women became tenants and under the Lords wing so as they durst not willingly and illegally offend their Lord in their widdowhood nor by law nor reason match themselves and their dowry to any other that was not first allowed by the Lord to be in friendship with him and thus became the tenants widdows to be at the liking of the Lord for their marriage and the like hereto may be said concerning the husband in case of tenant by the curtesie Miror fo 20. and however by the Norman former practise it was much disturbed yet by Henry the first it was again reduced to its former right rather then originall arising from his grant as some hold and proved advantagious for the ends aforesaid Now as touching their marriage portion of goods because the Saxon law had already endowed them thereof they could not be induced to lay down their known ancient right till they found the new law of dower to settle and so for some time both laws were in force untill the more ancient Saxon law had an honourable buriall Neverthelesse for the present the law abridged that right so farre as to limit it to the widdow during widdowhood according to the former Saxon law Upon consideration of all which it may well be conceived that the power of the Lords in consenting or dissenting to the marriages of their tenants widdows and wards was not so much an usurpation upon the common right of the English subjects as a custome rationally and with great wisdome as the course of affaires then stood upholden and allowed amongst them principally for the speedy setling of a peaceable government and consolidating of two Nations into one and wherein England was then so happy as to come to a conclusion in seven yeeres which cost their ancestors nigh two hundred yeeres experience with the Britons besides a world of bloodshed that might have been spared ere they could finde out the right way to a desired peace by mutuall marriages had between them cap. 4. 4. Wardship Such widdow shall have the custody of the Lands of such children or otherwise such other person as by right ought to have the same This is the first news of Wardships that passed abroad cum privilegio of a received Law which together with the former declare the right custome of the Normans M. Paris and thereby the injustas consuetudines quibus Angliae regnum opprimebatur viz. Arbitrary reliefe taken of the Tenants estate arbitrary marriages made of their persons and arbitrary grants of guardianship of their lands for as yet oppression was not so high flown as to cast the government of the persons of their Wards out of the view of the Lords provisionary care upon adventure of the next inlaw whether man or woman wise or unwife under pretence to train him up in military service fit for the Lords own safety and the Kingdomes lifeguard but it was the proper ground of the Lords own seisure and right of wardship he being looked upon by the eye of common reason as the onely meet man that both could and would effect that worke so as might be most advantagious to the publique which seemed to be chiefly concerned herein and upon the same generall ground the survey of fooles accompanied the former albeit it was not in practise till Henry the first brought it in as the Mirror of justice saith fo 258. Ll. Canut 37. yet it came upon an ancient foundation laid in the time of the Danes For my own part I will not dispute the point whether this custome of Wardship was purely Norman or whether it was derived from the Saxons anciently who possibly might have some respect to Orphans in such cases to traine them up for the publique service in point of war especially being possessors of a known right of reliefe as well as Alfred the Saxon King did undertake the worke for the training of some such particular persons in learning for the service of the publique Asser Menev. in time of peace and civill government yet thus much appeareth that guardianship of Lands was a known custome enough to make and maintaine a right and that it by law was a right belonging to some persons before others and that this had been a custome before the former unjust customs crept into government of the Conquerour and principally of his sonne Rufus and though it be questionable whether it setled first upon the Normans or the English yet its manifest that if one people had it the other people now comming into union with that people could not in reason except against that custome which the other people had taken up upon so honorable grounds as reason of State which as the times then were was evident and superlative especially the customes being under the regulating of Law and not of any arbitrary power and can be no presidents of the reliefe marriage and wardship that after ages usurped Tenants in Knights service shall hold their Lands cap. 5. c. acquitted of all taxes 5. Acquittall that they may be more able to provide Armes and be more ready and fit for the Kings service and defence of the Kingdome This law whither it be a renewing of a former custome or an introduction of a new Law it s cleare it was upon an old ground That Tenants by Knight service must be ready for the service of their Lord and defence of the kingdome whereof afterwards But the law is that these men shall hold their lands of that tenure acquitted of all taxes though legally imposed upon the body of the Kingdome which must be
Ordinances or Councels or executioners or such as shall judge by such things All such as are knowingly guilty of any such matters shall ipso facto incur this sentence such as are ignorantly guilty shall incur the same censure if being admonished he amend not within fifteen daies after admonition In the same censure are comprehended all perturbers of the peace of the King and Kingdom for everlasting memory whereof we have hereunto put our Seales And then all throwing down their Tapers extinguished and smoking they said So let all that shall goe against this curse be extinct and stinke in Hell The King all the while continuing in the posture above mentioned said So God me help I will observe all these things sincerely and faithfully as I am a man as I am a Christian as I am a Knight as I am a King crowned and anoinied If we shall pare away the superstitious ceremonies and consider divine providence we may search into all Histories of all ages and we shall not finde a parallell hereunto so seriously composed solemnly pronounced with an Amen from the representative body of the whole Kingdome put in writing under seale preserved to posterity vindicated by God himselfe in the ruin of so many opposers And yet the dust of time hath almost buried this out of the thoughts of men so as few even of such as know it do seriously consider how far it may yet and even now be charged upon the account of this Nation Serious as it was it was soon forgotten nor would the King be long holden with promises some unhappy Starre strooke him in his birth he had been too hard for his promises and now having the Pope at his elbow he can dispence with his oath and bid defiance to an execration and in flat defiance of the grand Charter professeth oppression accumulates forraine Councellors and forraine guards contemnes his own people ushers in the Popes extortions upon them to fill up the measure thrives in nothing but in the match of his sonne and successour with a sister of Spaine and yet that also helps to hasten on the publque poverty and that a Parliament that brought forth a bloody issue although not by any naturall power but occasionally For the Barons mean now no longer to trust to promises strangers are banished the Realme and others of the English blood stepped into their places and Revenues But this was not all the King must confirme the grand Charter and thereto he addeth not onely his own oath but causeth the Prince his sonne to confirme the same in like manner It is likewise propounded to him that the chiefe Officers of the Kingdome may be chosen such as the Parliament shall like of And that other lawes meet for the government of the Kingdom might be established of all these the King made no bones And to make men believe that he was in good earnest he was contented to disrobe and disarme himselfe Dan. and invest the Barons both with Sword and Scepter retaining nothing but the Crown for himselfe This had been safety enough for the Kingdome but that it was a conclusion without an agreement for as it was on the Kings part made from a principle of shame and feare so it was determined in anger for after that the King had been thus drest and girt for the space of foure or five yeeres whatsoever he thought all the while it s no matter he began first to stretch his conscience and having the Popes dispensation to helpe soon makes his oath to flie asunder although his sonne had for the present more conscience But the other girt held more stoutly for the Lords had the Sword chained to their arme by the Kings own grant Liceat omnibus in regno nostro contra nos insurgere ad gravamen nostrum opem operam dare ac si nobis in nullo tenerentur Dan. An. 1258. and the Lords maintained their hold though not without some jealousies amongst themselves it s very probable had the King been a little longer breathed with patience he might have had his will upon easier termes for the Lords were not so jealous of one another as the Commons were jealous of the Lords that they meaned to rule onely for themselves But the King being now in a wood and bemired so as he must now resolve to get all or lose all and so either sacrifice his naturall desires or the remainder of his politicke power entered the field with the ayd of those Commons that chose rather to be oppressed by one King then many Lords and thus the Lords received the first blow and gave the first foile afterwards being worsted by their own divisions and jealousies they left a victory to the King that might have made him absolute if he had been moderate but pursuing revenge too farre he was distasted of his own party that looked on him as a Polyphemus that intended to devoure the enemy first that he might more freely feast upon themselves in the issue this made victory follow the King a farre off and taught the King that the end of civill warre must be attended with moderation in the Conquerour so farre as may stand with publique safety or otherwise he that is conquerour to day by Sword may be conquered to morrow by jealousie Thus many humours consumed and all parts tired after four yeeres continuall warre the State commeth to its right wits The Kings gaines in all this bloody sweat may be summed up in two heads First that he had liberty to choose his principall Officers of State by advice of the Lords and them also to displace by like Councell Secondly in that he gained though at a deere rate wisdome to observe the state of affaires and to apply himselfe according to occasion so lived Henry the third for three or four yeeres after these troubles long enough to let the world know that he was able to governe like an English King and to teach his sonne by his own late experience to be a wise governour betimes For Edward the first being trained up in the Tragedy of a civill warre wherein he was one of the chiefe actors Edw. 1. and having expiated the bloody way of his riotous youth by his holy warre as they called it now he betakes himselfe to amends making by justice in government having found by his fathers experience that a Kingdom well governed like good husbandry preserves the owner but being neglected destroyes both He came over in his third yeere in August was crowned in September summoned a Parliament in February following but adjourned it till after Easter and then it is found that the Church of late had been ill governed the Clergy men grieved by many waies the people otherwise handled then they ought to be the peace ill kept the laws lesse used and delinquents lesse punished then was meet and in the sence of these inconveniences were the laws of VVestminster the first made wherein the world
consisted in preventing and suppressing riots routs unlawfull assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other malefactors And herein we are to consider 1. The Laws 2. The meanes 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the Kings own person and therefore we finde not onely the assize of Armes but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can finde put the same into the force of a law by Parliament finding by experience that Proclamations may declare the Kings mind but not command the peoples wils although peradventure the thing enjoyned was of ancient use and little inferiour to custome or Common law Such are the distempers of civill broiles that bring up peace in the reare as a reserve when their owne strength is wasted rather then out of any naturall inclination thereto A briefe recollection of the laws thus ensues Stat Wint. 13 Edw. 1. cap. 1. In case of Robbery or fellony committed and the delinquent be not forth cemming or discovered the County or Hundred shall answer the dammages Of this more may appeare from the Norman and Saxon laws the intent appeareth by the law it selfe to stirre up the people to use all meanes by pursuit with hui and cry and making inquisitions of the fact with all speed in Townships Hundreds Franchises and Counties cap. 2. Persons suspected shall not be entertained or harboured by any inhahitant unlesse He will undertake for him Of this also formerly both in the Norman and Saxon laws cap. 3. Walled Towns shall keepe their gates shut from Sunne set to Sunne rising The like observed in Cities Burroughs and Townes from the feast of Ascention to Michaelmas The power of the watch was great it might apprehend any passenger and stay him all night and if he be a suspected person he is to be committed to the Sheriffe and if an escape be made the party is to be pursued with hui and cry These two last Chapters were in effect in Henry the thirds time in course by way of the Kings command by Writ in the 36 and 37 yeers of his reigne with some more particulars concerning the same M. Paris in Addit post Adversar cap. 4. High waies through every Lordship shall be kept cleare on each side by the space of 200 foot from hedges ditches Bushes and underwood High waies herein intended are such as are from one Market Town to another and in such were alwaies preserved the publique peace or safety for the maintenance of commerce and freedom of traffique which is of such publique concernment that it hath been of very ancient institution Every man between the age of fifteen yeeres and forty shall maintain Armes in his house cap. 5. according to the ancient Assize for the preserving of the peace This Chapter brings into consideration the second thing propounded viz. the meanes of preserving of the peace which are two First by maintaining Armes 2. By certifying defaults In the first is to be considered the persons that are to be assessed 2. The Armes 3. The end The persons to be assessed to Armes are indefinitely set down and comprehend all sorts as well bond as free and others for such are the expressions in the Commission of Henry the third 36 Hen. 3. M. Paris post adversaria Hoveden But by the Assize of Henry the second none were to be armed but free men and they worth sixteen or ten Marks in goods at the least yet their ages are limited by this Law they must be between fifteen yeeres and forty but by the Commission in Henry the thirds time all between fifteen and sixty yeeres of age were to be armed King John arrayed all sorts free bond and all others that have Armes or ought to have or can carry Armes M Paris Anno 1213. and it seems by what hath been formerly noted that those that were younger then their tenure would beare them out were accepted into service if they would offer themselves but by these courses they though under one and twenty yeeres of age were not onely accepted but compelled to warre Hoveden Hen. 2. M. Paris addit Under this title we may also touch upon the persons that were the instruments to array these men or rather to arme them and these were Justices itinerant or one or more Commissioners such as the King found most meet for the service and unto these were Commissions with instructions sent and sometimes Writs were directed onely to the Sheriffs to take with them twelve Knights of the County M. Paris post adversaria and to goe into every Hundred and call before them all such persons as by the law ought to be assessed at Armes and to cause them to be sworn to finde and maintaine Armes in such manner as by the Law they then should be or formerly were assessed and sometimes the establishment of Armes were set down in those Writs and sometimes published by Proclamation M. Paris Anno 1253. 1256. For Kings found all means little enough to prevaile to bring in alteration of Armes and of their service which was a thing not onely troublesome but chargeable and whereunto they could not easily prevaile to bring the freemen to consent and therefore sometimes the indeavours of Kings in such cases did not onely meet dilationem M. Paris An. 1253. but also deletionem as the Historians words are untill the way was found out to declare an establishment by Parliament by this Statute made at Winton Now for the nature of the establishment we are to consider that the people of England were distinguished according to their teanures Ll. Gulielm 58. into such as held by Knightservice and such as held by Soccage and that none but those being freeholders could be charged to finde armes according as by the Lawes of the Norman Conquerour may appeare The establishment of Armes for the Knights were established by their tenures in certainty and therefore no need was either of assessment or oath to tie them to finde such Armes but all the difficulty was for such as were not bound by other tenure then as free born subjects all of whom doe owe to their Country defence and so questionlesse had liberty to provide themselves of such armes as were by common and constant use held most advantagious against the common enemy and for the publique defence And that these were put in certainty may appeare by the Law of King VVilliam formerly noted and by some instances in the Saxon Laws anciently used Ll. Aethelst c. 16. amongst others that Law of Aethelstane that for every plough every man