there is a much more difference between an Almes and a Tribute then between the King and the people Now that it was an Almes and not a Tribute may appeare for that the originall was a suddaine pang of zeale Vit. Offae 29. conceived and borne in one breath while the King was at Rome and therefore not imposed as a Tribute Secondly it was ex regali munificentia and therefore free Thirdly it was expressely the gift of the King for the Law of St Edward which provideth for the recovery of the arreares of this money Concil Brit. p. 445 â—4â— Concil Brit. p. 621. and enjoyneth that they must be payed to the King and not to Rome as it was in the daies of Canutus and Edgar rendereth the reason thereof to be because it was the Kings Almes Secondly that it was an Almes onely from the King and out of his own Demesnes may seem not improbable because it was ex regali munificentia which could never be affirmed if the gift had been out of the estates of others Secondly it was granted onely out of such houses as yeelded thirty pence rent called vivae pecuniae because in those times rent was payd in Victuall so as it may seem that onely Farmes were charged herewith and not all mens Farmes neither for the generall income will never answer that proportion The particular hereof I shall in briefe set forth It appeareth in the former quotation that Offa charged this leavy upon the inhabitants dwelling in nine severall Diocesses viz. Hereford which contained the City and County adjacent 2. VVorcester containing the Cities and Shires of it and Glocester 3. Lechfield containing VVarwickeshire Cheshire Staffordshire Shropshire and Darbishire 4. Leicester with the County adjacent 5. Lincolne with the County adjacent 6. Dorchester whereto belonged Northamptonshire Buckinghamshire Bedfordshire Huntingtonshire Cantabridgeshire and halfe Hartfordshire 7. London with Essex Middlesex and the other halfe of Hartfordshire 8. Helmham with Norfolke 9. Domuck or Dunwich with Suffolke In which nine Diocesses were two and twenty shires And he further granted it out of Spatinghenshire now Nottingham whose Church belonged to Yorke But in Ethelwolfes time the grant was enlarged and extended into fifteen Diocesses which together with their severall charge out of the English Martyrology I shall particularize Fox Martyr p. 340. as followeth  l. s. d. Cantuar. Dioces 07. 18. 0. London 16. 10. 0. Roffen 05. 12. 0. Norwic. 21. 10. 0. Elienum 05. 00. 0. Lincoln 42. 00. 0. Cistrens 08. 00. 0. VVinton 17. 06. 8. Exon 09. 05. 0. VVigorn 10. 05. 0. Hereford 06. 00. 0. Bathon 12. 05. 0. Latisburgh 17. 00. 0. Coventree 10. 05. 0. Ebor 11. 10. 0.  200. 06. 8. The whole sum whereof not exceeding two hundred pounds six shillings and eight pence will not amount to seven hundred pounds of now currant money if the weight of a penny was not lesse in those times then in the reigne of Edward the first when it was the twentieth part of an ounce and that the twefth part of a pound as by the statute thereof made may appeare Nor can the difference be much if any in regard of the vicinity of the time of this extract to that of the Statute for though no particular date thereof appeare yet it seemeth to be done after the translation of the See from Thetford to Norwich which was done in VVilliam Rufus his time and after the erecting of the Bishoprick of Ely Brit. Antiq. p. 18. which was in the time of Henry the first Now albeit this charge was in future times diversely ordered and changed yet upon this account it will appeare that not above eight and forty thousand and eighty houses were charged in this time of Edward the second with this assessement which is a very small proportion to the number of houses of husbandry in these daies and much more inferiour to the proportion of houses in these times if Polydores observation be true that in the Conquerours time there were sixty thousand Knights fees and as others fifty thousand Parishes It may therefore be rather thought that none but the Kings farmers were charged herewith notwithstanding the positive relations of writers who in this case as in most others wherein the credit of Rome is ingaged spare not to believe lightly and to write largely And thus for their sevenfold Church-officers we have also as many kinds of constant maintenance One in Lands and Tenements and six severall kinds out of the profits and the personall estate besides the emergent benefits of oblations and others formerly mentioned CHAP. XII Of the severall Precincts of Jurisdictions of Church-governours amongst the Saxons THe Church-officers thus called to the Drumme and payd are sent to their severall charges over Provinces Diocesses Deaneryes and Parishes Malms gest Reg. lib. 1. c. 4. as they could be setled by time and occasion Before the Saxons arrivall London had the Metropolitane See or was chiefest in precedency for Archbishops the Britons had none Afterwards by advice of the wise men Canterbury obtained the precedency for the honour of Austin who was there buried The number of Provinces and their severall Metropolitan Sees was first ordered by advice of Pope Gregory Bed hist lib. 1. cap. 29. who appointed two Archbishops in Saxony the one to reside at Canterbury the other at Yorke and that each of them should have twelve Bishops under them but this could never be compleated till Austin was dead as by the Epistle of Kenulphus to Pope Leo appeareth Malmesb. loco citat Nor then had the Pope the whole power herein intailed to his Tripple-Crowne for the same Epistle witnesseth that the councell of the wise men of the Kingdome ruled the case of the Primacy of Canterbury Vit. Offae Malmesb. Concil Brit. 133. Antiq. Brit. Antiq. Brit. p 54. M. Westm An. 775. And Offa the King afterward divided the Province of Canterbury into two Provinces which formerly was but one The Precincts of Diocesses have been altered ordinarily by Kings or the Archbishops and their Synods as the lives of those first Archbishops set forth Theodore had divided his Province into five Diocesses and within a hundred yeeres after Offa we finde it increased unto eleven Diocesses Diocesses have also been subdivided into inferiour Precincts called Denaries or Decanaries the chiefe of which was wont to be a Presbyter of the highest note called Decanus or Archpresbyter Ll. Edw. conf cap. 31. Lindwood l. 1. de constit c. 1. The name was taken from that Precinct of the lay-Lay-power called Decennaries having ten Presbyters under his visit even as the Decenners under their chiefe The smallest precinct was that of the Parish the oversight whereof was the Presbyters work they had Abbeys and other religious houses but these were however regular amongst themselves yet irregular in regard of Church-goverment whereof I treat CHAP. XIII Of the manner of the Prelates government of the Saxon Church HAving
free course a full century of yeeres before the civill Magistrate had any other power but what was wrapped up under the allowance of their Roman Masters who like Gallio looked upon the Church affaires as out of their Spheare and therefore cared for none of those things or if the zeale of any See far prevailed it was much in favour of the Bishops upon whom the Emperours began to dote as Oracles and this raised the price of the Clergy and taught them the way to fish for themselves No wonder it is therefore if Synods in Britaine or rather the Clergy in the Synods which probably were then the representative body of the Nation swayed all that was free from the Roman Magistracy and in some things out-reached their limits especially during this interim wherein the Romans held the armes of civill Magistracy bound and let the Clergy have their scope that soon began to be ambient and conceipt a new Idea of deportment like that of the second beast in its infancy Nor did the Britons espy their danger herein for they had been used to idolize their Druides and it was no more but faces about to do as much for their Bishops Of this power of Synods I shall propound but three presidents and so draw to a conclusion of what I think meet to note conconcerning the British affaires I suppose it will not be doubted but that publique consultations concerning the publique government of any place or Nation ought not to be called but by the Supreame power and that such consultations are to be directed by that Supreame power The Britons had a King and yet without his consent they call a Synod against the Pelagian Heresie M. Westm An. 446. Beda Lib. 1. cap. 17. and chuse a Moderator from beyond the Sea and by that Synod not onely overwhelmed the Heresie but excommunicated their King This was a Nationall Synod and might well stand with the rule of State which then had seated the Supreame power in the people as I formerly noted out of Dion But it could be no warrant for that which followed viz. that a Country Synod should excomunicate a King as it befell in the cases of Moris and Morcant Concil Brit. p. 49 62 382. Or that such a Synod should intermeddle in matters of meum and tuum as in the case of Loumaek who having invaded the patrimony of the Church the Bishop of Landaff in a Synod of his Clergy enjoyned him penance Concil Brit. 385. and the like befell unto B ockvaile who was compelled by the Synod to make amends to Civiliack Bishop of Landaff for injury to him done which I note not by way of imputation for this exorbitancy if so it were might correspond with these times wherein very probable it is that justice could not be had elsewhere and had the Clergy been as carefull of holinesse as in the former cases they seem jealous for justice Britaine must have had the repute of a Nation of Priests and holy men rather then of Tyrants whereas it was become a glut of wickednesse Gildas and a burden that God would endure no longer which rendreth their Synod lyable to exception as being such as were either lifted up or drawn aside and as the List to the Cloth sheweth that the Nation stood in need of that instruction which with a strong hand God wrought into them by the sad calamity which ensueth CHAP. IV. Of the entry of the Saxons and their manner of Government WAsted with time and wounded by eternall doom the glory of the Westerne Empire going down apace now draweth nigh unto its everlasting night and that vast body not able longer to subsist but dying by degrees abandons this Isle of Britaine its utmost limmit and last inlivened to subsist alone miserably or else to die The choise was more difficult by how much the more England was much wasted in the Roman wars the flower of their strength spent in forraigne service the remainder but few and these exceeding vicious and which was worst of all ingaged by the Romans in a warre with the Picts against whom the Romans themselves found it too burdensome for them to hold out without the helpe of a wall and albeit that the very name of an old servant of foure hundred yeeres continuance might have moved a Roman heart to commiseration yet their spirits faile and forsaken England must now goe into the Wildernesse and naked as they are endure the brunt of the cold stormes of the Northern Picts without any shelter but the hidden will of God then frowning upon them In this condition they halfe desperate seeke for a cure in reason worse then the disease For it had been better for them to have stooped to hard conditions with the Picts considering they were all but one people and differing onely by the bredth of a wall then to call in a new people whose qualities they were ignorant of and at the best to make them their companions who might prove as they afterwards did both Lords and Masters over them But there is no reason against Gods will The Britons needed present helpe they overlayd by invasions from the Picts who soon espied the Romans gone and their own advantage sent for ayde where they were most like to speed for the present Aman l. 26. and left the future to look to it selfe Ireland was nigh but we finde nothing concerning their interest in shipping the French coasts were not their own men being yet within the Roman Line and none were at liberty but such as were never subdued by the Romans Onely the Saxons are in the thoughts of the Britons a mighty people not farre off Zossimus hist lib 3. able to mate the Romans in their chiefest pride and though in a manner borderers upon the Roman world yet unsubdued by them used to the wars mighty at Sea and now given over by the Romans in a plain field were at leasure and so well knew the way to Britaine that the Romans intituled the coasts of Norfolke and Suffolke the Saxon coasts Amian lib. 28 30. from the many visits that the Saxons had already made into those parts full sore against the Romans wils I hold it both needlesse and fruitlesse to enter into the Lists concerning the originall of the Saxons whither they were natives from the Northern parts of Germany or the reliques of the Macedonian army under Alexander But it seems their government about the time of Tiberius was in the generall so sutable to the Graecians Suffeid Petrus Fris antiquit lib. 3. cap. 1. as if not by the reliques of Alexanders army which is generally agreed emptied it selfe into the North yet by the neighbourhood of Greece unto these Nations it cannot be imagined but much of the Graecian wisdome was derived into those parts long before the Romans glory was mounted up to the full pitch and because this wisdome could never be thus imported but in vessels of mans flesh
in the Lawes cap. 2. Rights of Tythes of a Lay fee or where the tenure is in question belong to the Kings court Pleas of debts by troth-plight belong to the Kings Court. cap. 3. These were Saxon Laws and do intimate that it was the indeavour of the Clergy to get the sole cognisance of Tythes because they were originally their dues and of the debts by troth-plight because that oaths seemed to relate much to Religion whereof they held themselves the onely professors The Kings Justice shall reforme errourrs of Ecclesiasticall Courts and Crimes of Ecclesiasticall person cap. 4. Appeales shall be from Archdeacons Courts to the Bishops Courts and thence to the Archbishops courts cap. 5. and thence to the Kings court and there the sentence to be finall No man that ever was acquainted with antiquity will question that these were received Laws in the Saxons time Constit at Clarindon nor did the Clergy ever quarrell them till the Normans taught them by curtesie done to Rome to expect more from Kings then for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergy for his Crowne and could not otherwise content them parted with this Jewel of supreame power in causes Ecclesiasticall to the Roman cognisance as hath been already noted but Henry the second would none of this cheate at so easie a rate This strooke so smart a blow as though the Popedome had but newly recovered out of a paralitique Schisme yet seeing it so mainly concerned the maintenance of the tripple Crown Alexander the Pope having lately been blooded against a brave Emperour made the lesse difficulty to stickle with a valiant King who in conclusion was fain to yeeld up the bucklers and let the Pope hold what he had gotten notwithstanding against this law and all former Law and custome And thus the Popes supremacy in spirituall causes is secured both by a recovery and judgement by confession thereupon Constit at Clarindon The King shall have vacances of Churches cap. 6. and power to elect by his secret Councell The party elected shall doe homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custome not altogether against reason although not suitable to opinion of many yet we meet two alterations of the ancient custome First that the election shall be by the King and secret Councell whereas formerly the election of Bishops and Archbishops was of such publique concernment as the Parliament tooke cognisance thereof and that which was worse a Councell was hereby allowed called a secret Councell which in effect is a Councell to serve the Kings private aimes and unto this Councell power given in the ordering of the publique affaires without advice of the publique Councell of Lords which was the onely Councell of state in former times and thus the publique affaires are made to correspond with the Kings private interest which hath been the cause of much irregularity in the government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unlesse by practise in Stevens time when as there was little regard of the one or the other Nor doth it concurre with the file of story that it should be inserted within these constitutions Constit at Clarindon seeing that writers agree it was the chiefe cause of quarrell between him and Becket who refused submission without the clause and at which the King stooke with the Archbishop for the space of seven yeeres which was six yeeres after the Constitutions were consented unto and concluded upon cap. 7. No Clergy man or other may depart the Realm without the Kings licence It s a law of Nations and must be agreed on all hands that no reason of state can allow dispensations therein especially in a doubtfull government where the Supremacy is in dispute and this the wilfull Archbishop never questioned till he questioned all authority but in order to his own for but the yeere before when he went to Turonn to the generall Councell upon summons M. Paris he first obtained licence from the King before he went No sentence of excommunication or interdiction to passe against the Kings tenant or any minister of state cap. 8. without licence first had of the King or his chiefe Iustice in the Kings absence Till the Conquest no Excommunication passed without warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons Constit at Clarindon and the Clergy having gotten the upper hand in Councels made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon vid. cap. onely as well the Normans as untill these times Kings have saved their owne associates from that sudden blow and upon reason of religious observance least the King should converse with excommunicate persons ere he be aware The Laity are not to be proceeded against in Ecclesiasticall Courts cap. 9. but upon proofe by witnesses in the presence of the Bishop and where no witnesses are the Sheriffe shall try the matter by Iury in the presence of the Bishop A negative law that implieth another course was used upon light fame or suspition ex officio although the oath at that time was not borne into the world and that all this was contrary to the liberty of the Subject and law of the Land and it intimates a ground of prohibition in all such cases upon the common law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath cap. 10. or baile to stand to the judgement of the Church Upon the taking and imprisoning of the party excommunicate Constit at Clarindon the course anciently was it seemeth to give pledge to stand to order of this the Bishops were weary soon as it seemeth and therefore waved it and betooke themselves to other inventions of their own viz. to bind them by oath or baile both which were contrary to law for no oath was to be administred but by law of the kingdome nor did it belong to the Ecclesiasticall laws to order oathes or baile and therefore this law became a ground of prohibition in such cases and of the Writ de cautione admittenda cap. 11. Persons cited and making default may be interdicted and the Kings Officer shall compell him to obey If the Kings Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the processe in the Spirituall Courts was to be regulated according to Law nor did it lie in the power of such Courts to order their own way or to scatter the censure of excommunication according to their own liking This together with all those that foregoe the Archbishop upon his repentance absolutely
that worke which outwearied their strength at last and made them forgoe the prey as too heavy for the Eagle to trusse and carry away It oft befals that things of deformed shape are neverthelesse of excellent spirit and serve the turne best of all and it is no lesse remarkable that this tyde of Roman invasion however it represented to the world little other then a tumour of vain-glory in the Romans that must needs be fatall to the Britons liberty and welfare yet by over-ruling providence it conduced so much to the Britons future glory as it must be acknowledged one of the chiefe master-pieces of supernaturall moderatorship that ever this poore Island met with First it taught them to beare the yoke to stoop and become tractable for stubborne spirits must first stoop under power before they will stoop to instruction but this onely in the way for tractablenesse if good ensue not is of it selfe but a disposition for evill Secondly it brought into Britaine the knowledge of Arts and civility and questionlesse it was a wise policy of Agricola to goe that way to worke Tacit. vit Agric. for its an easie and Royall worke to governe wise men but to governe fooles or mad men is a continuall slavery and thus religion already setled in Britaine became honoured with a traine of attendants and handmaids Thirdly they reduced the number of little Lordships nigher to the more honourable estate of Monarchy for the Romans by deere experience finding no stability or assurance in what they had gotten so long as so many petty Kings had the rule they wisely brought the whole into one Province because it is much easier to governe many subordinate each to other then co-ordinate one with another over which they allowed one chiefe to rule the people according to their own Lawes saving their service to the Romans and their Lieutenants untill they were necessitated to yeeld up all to the next occupant This served the British Church with a double interest For first Religion spreads sooner under one uniform government then under variety and under Monarchy rightly ordered rather then any other government whatsoever albeit that other governments may afford it faster footing when it is entred Secondly Rome was a renowned Church throughout the world for gifts and graces and it is obvious to conceive that it was specially purposed by divine providence to make that place a fountaine that from thence the knowledge of Christ might convey it selfe joyntly with the influence of Imperiall power as the spirits with the blood into all Nations of that vast body Above one hundred yeeres were spent in this Provinciall way of government of Britaine under the Roman Lieutenants during all which time Religion spread under ground whiles the Roman power in a continuall war sprang upward Nor is it strange that Religion should thrive in warre the French wars in Edward the thirds time brought much of this happinesse to England from the Waldenses and Germany had no lesse benefit by the wars of Charles the fifth with the Italians French and Turks and thus the Romans levened with the Gospell by exchanging men with Britaine and other mutuall correspondencies insinuated that leven by degrees which in the conclusion prevailed over all For the Roman Lieutenants having gotten sure footing in Britaine steered their course with a different hand generally they were of the Roman stampe seeking to kill Christ in the Cradle and by that meanes Religion met with many bitter storms of bitter persecution and so was compelled to beare a low saile but some being more debonaire and of wiser observation soon found that the way of justice and gentlenesse had more force in Britaine then Armes and so endeavoured to maintaine that by moderation which they had gotten by labour and blood as it is ever seen that where conquest is in the van gentlenesse follows in the reare because no Bow can stand long bent but at length must give in and grow weake And thus by connivance the Britons got a little more scope and Religion more encouragement till it became acquainted with the Roman Deputies began to treat with the Emperours themselves and under the wise government of Aurelius the Emperour mounting into the Brittish throne crowned Lucius first of all Kings with the Royall Title of a Christian He now not so much a vassall as a friend and ally to the Romans and perceiving the Empire to be past noon and their Lieutenants to comply with the Christians began to provide for future generations and according to the two grand defects of Religion and Justice applied himselfe for the establishment of both Religion in Britaine hath hitherto been for the most part maintained by immediate influence from Heaven No Schools no learning either maintained or desired the want whereof together with the persecutions stirred up by the Emperours especially Domitian brought the Church to so low an ebbe that the Sacraments ceased for Histories tell us that Lucius sent to Rome for reliefe and that the Bishop of that place whether Evaristus or Eleutherius sent over learned men to preach and baptize both King and people and in this Rome might probably gaine some honour M. Westm an 181. although possibly the King intended it not or muchlesse to acknowledge any authority or power in that Church over that of Britaine This act of Lucius so advanced him in the opinion of writers that they know not when they have said enough Some will have him to be the instrument of the first entry of Religion into this Isle others that he setled a forme of Church-government under the three Archbishops of London Yorke and Caerlion upon Vske and 28 Bishopricks the first of which is cried down by many demonstrative instances nor can it consist with the second nor that with it or with the truth of other stories For it neither can be made out that Lucius had that large circuit within his Dominion nor that the title of Archbishop was in his daies known and t is very improbable that the British Church was so numerous or that Religion in his time was overspread the whole Island nor is there any mention in any Authour of any Monuments of these Archbishops or Bishops of Britaine for the space of 200 yeeres after this Kings reign and yet no continuall raging persecution that we read of that should enforce them to obscure their profession or hide their heads or if such times had been it would have been expected that Bishops in those daies should be in Britaine as well as in other places most famous for gifts and graces and passe in the forefront of persecution But we finde no such thing no not in the rages of Dioclesian which made the British Church famous for Martyrs Writers speake of Alban Amphibalus Aron Julius and a multitude of Lay-people but do not mention one Bishop nor Presbyter nor other Clergyman M. Westm an 303. but quendam Clericum a man it seems of no
Saxons were not so zealous of their new Religion as to make a new Nationall quarrell between the Britons and themselves but left the game to be played out by Austen who finding by experience that it would not prove the worke of one man left it to successors to worke out by degrees in efflux of time And thus Austen neither good servant to the Servant of Servants nor good Monke retires to settle his Saxon province and to present or rather to prostitute it to the lusts of that red whore which was the generall piety of those ignorant times CHAP. VI. Of the imbodying of Prelacy into the government of this Kingdome I Cannot think that the platforme of the mystery of iniquity when boyled to the hight was ever foreseen or in the aime of the wicked spirits on earth or those in hell yet were they all instruments of this monstrous birth filled with subtilty and mischiefe guided principally by occasion and over-ruled by the Justice and Wisdome of God to make a yoke for Monarchs and a scourge to the world for their refusall of the government of Christ untill this monster came to perfection and wherein themselves were feloes de se and wrought their owne mischiefe for Austen comming in as a third proprietor with King and people and having gathered the materials of a Church reason told them that a forme of government must be setled in that Church the Saxons had no principles of their own Tacit. mor. Serm. for they had no learning and to goe to the Britons for a patterne might be thought ignoble and where the choice is small it s soone made Rome held now the most part of the Churches of Europe at Schoole the Saxons soon resolve Rome that had been their mother shall be also their father and thus at one draught they dranke up a potion of the whole Hierarchy of Rome from the Pope to the apparator with a quicquid imponitur imponetur which was of such lasting efficacy that it ceaseth not to worke even to this day although it was slow in the first provocation For the Saxons had a Common-weale founded in the liberty of the people and it was a master-piece for Austen and the Clergy so to worke as to remaine members of this Commonweale and yet retaine their hearts for Rome which was now grown almost to the pitch of that Antichrist for reason must needs tell them that the Saxon principles would not suffer them to be ad omnia for Rome nor the Roman Canon allow them to be wholy Saxon and they saw plainly that the times were too tender to endure them to be declarative on either part and therefore they chose a third way which was to preserve the municipall Lawes in moderation towards the Canon and to that end to endeavour such a temper upon the State as must admit them to be in repute such as without whom the Common-weale could not well subsist no more then a body without a soule and that few occasions should befall but at least in ordine remoto must reflect upon both and then all reason will be speake them to joyne in the legislative power and government of this Kingdome but especially as Bishops who are now Magnae spes altera Romae and the very top-flowers of wisdome and learning And unto this temper the Saxons were sufficiently prepared and inclinable for it was no new thing for them to admit their heathenish Priests into their generall meetings and allow them much power therein and then it s but the person changed and they must doe as much for their Bishops now they are become Christian especially themselves being all for the field and overgrown with a generall ignorance the common disease of those times Kings were in no beteer condition it was hard for them to be baptised and not to be baptised into Rome and commonly under such a Covenant as though many might repent of yet none durst amend for when as the Pope is Lord of the consciences of the People the Kings power may sometimes outface but can never govern the Saxon Kings were therefore faine to make a vertue of necessity and advance Bishops to be common favorites both of Rome and themselves to maintaine good correspondency between both Swords and to countenance the power of the temporall Magistrate in cases of dispute else he might oftentimes command and yet goe without Thus enter the Prelates upon affaires of Kings and Kingdomes and became lovers of Lordships and troublers of States and if in any thing they served their Countrey they served Rome much more their merchandise was made of the policies and Councels of all Kingdomes and States and such returnes proceeded as were still subservient to the Roman interest and they so intoxicated the domestique counsels in such manner as they generally staggered and many times came short of home Neverthelesse at the first this was but rare clancular and covered with much modesty for excepting such choice spirits as Austen had Roman Prelacy in these yonger times was but Velvet-headed and endured not much greatnesse or bigge titles but spake like a Lambe Ego non verbis quaero prosperari sed moribus said this Gregory to the Alexandrian Bishop who had put upon him the title of universall Bishop or Pope Greg. Epist ad Eulog and whereas he had in a way of Courtship called Gregories counsels commands he startles at it quod verbum jussionis saith he peto a meo auditu removere quia scio quis sum qui estis Thus Prelacy first conveyed it selfe into opinion afterwards into conscience and ambition comming in the reare made it become both Bishop and Lord. CHAP. VII Of Metropolitans in the Saxons time BEing in pursuit of the government of this Kingdome in elder times and therein first of the persons with their relation then of their worke and lastly of their Courts and Lawes and now in hand with the Ecclesiasticall persons I shall descend to their particular ranks or degrees and shall shew what they were in their originall and what overplus they had by Lawes And first concerning the Metropolitan In his originall his Office was to visite the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reforme and in all things to proceed according to the prescript Canon Concil Brit. p. 258. Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practise of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swolne beyond the girt of the Canon An. 745. and before that England was honoured with that ranke of men Metropolitans were become Metronomians and above all rule but that of their owne will and through common custome had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the
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
in the same manner as the former Adultery Fornication Concil Brit. p. 558. for the civill Magistrate had cognisance thereof so far as touched the temporall penalty And to give them as much as can be allowed its probable that in all or most of the cases foregoing they had the honour to advise in determining of the crime and declaring the Law or defining the matter for in those ignorant times it could not be expected from any other But how the cognisance of Tythes crept under their wing Tythes might be much more wondred at for that it was originally from the grant of the people nor can a better ground be found by me then this that it was a matter of late originall for till the seventh Century the times were troublesome and no setled maintenance could be expected for the Ministry where men were not in some certainty of their daily bread And as it will hardly be demonstrated that this title was ever in any positive Nationall Law before the time of Charlemaine in whose time by a Synod of Clergy and Laity it was decreed that Tythes should be gathered by selected persons to pay the Bishops and Presbyters Synod Durien cap. 7. An. 785. Rabban epist ad Hadubrand So neither can I finde any Saxon Nationall constitution to settle this duty till Alfreds time although the Church men had them as a voluntary gift so far as touched the quota pars for the space of well nigh a hundred yeeres before But Alfred made a Nationall Law under a penalty to inforce this duty Concil Brit. p. 377 which the Canon could not wring from the Saxons how dreadfull soever the censure proved And by this meanes the Church had their remedy by Ecclesiasticall censure for the matter in fact and also the civill Magistrate the cognisance in point of right albeit future times introduced a change herein CHAP. XV. A briefe Censure of the Saxon Prelaticall Church-government THis that I have said might at the first view seem to represent a curious structure of Church policy which might have put a period to time it selfe but to speak sine ira studio the height was too great considering the foundation and therefore ever weake and in need of props The foundation was neither on the rocke nor on good ground but by a ginne screwed to the Roman Consistory or like a Castle in the ayre hanging upon a pin of favour of Kings and great men At the first they thought best to temporise and to hold both these their strings to their bow but feeling themselves somewhat underpropped by the consciences of the ignorant people they soon grew wondrous brave even to the jealousie of Princes which also was known so notoriously that the publique Synods rang that the Prelates loved not Princes Concil Brit. p. 254. An. 747. but emulated them and envied their greatnesse and pursued them with detraction And if the Cloth may be judged by the List that one example of Wilfrid Archbishop of Yorke will speake much He was once so humble minded as he would alwaies goe on foot to preach the Word Malmesb. gest pontif lib. 3. An. 680. but by that time he was warme in his Archbishops Robes he was served in Vessels of Gold and Silver and with Troops of followers in such gallantry as his pompe was envied of the Queen A strange growth of Prelacy in so small a space as eighty yeeres and in the middest of stormy times such as then afflicted this poore Countrey But this is not all for never doth pride lead the way but some other base vice follows I wil not mention the lives of the Monks Nuns and other Clerks Boniface epist ad Cutbertum An. 745. Malmsbury speaks sufficiently of their luxury drunknesse quarrelling and fighting Others witnesse thereto and tell us that the Clergy seldome read the Scripture and did never preach and were so grossely ignorant that Alfred the King being a diligent translator of Latine Writers into the Saxon tongue rendreth this reason because they would be very usefull to some of his Bishops that understood not the Latine tongue Concil Brit. p. 379. Nor were the Presbyters of another die for that King bewailing their ignorance in his Letter to Wolfegus saith that those which were de gradu spirituali were come to that condition that few of them on this side Humber could understand their common prayers or translate them into Saxon and so few as I doe not saith he rememember one on this side the Thames when I began to reigne And the Synod that should have salved all covers the sore with this Canonicall playster that those of the Clergy that could not say Domine miserere in Latine Concil Brit. p. 248. 253. An. 747. should instead thereof say Lord have mercy upon us in English It was therefore a vaine thing for the Clergy to rest upon their works or title of Divine right Their great pompe sacred places and favour of Kings commended them to the admiration or rather adoration of ignorant people and the favour of the Roman chaire unto the regard of Kings who maintained their interest with the Conclave on the one side and with the people on the other side by their means and so they mutually served one another It cannot be denied but the Pope and Kings were good Cards in those daies yet had the Prelacy maturely considered the nature of the Saxon government so much depending upon the people they might have laid a more sure foundation and attained their ends with much more ease and honour I commend nor the base way of popularity by principles of flattery but that honourable service of truth and vertue which sets up a Throne in the minds of the vulgar few of whom but have some sparks of nature left unquenched for though respect may chance to meet with greatnesse yet reverence is the proper debt to goodnesse without which we looke at great men as Comets whose influence works mischiefe and whose light serves rather to be gazed upon then for direction The foundation thus unhappily laid the progresse of the building was no lesse irregular in regard of their ends that they aimed at For first they admitted the Laity into their Synods who were not so dull but could espie their ambition nor so base spirited as to live in slavery after conviction This errour was espied I confesse but it was too late and though they reformed it yet it was after foure hundred yeeres labour and in the meane time by the contentions of the Clergy amongst themselves Kings had first learned so much of their Supremacy and the Laity so much of their liberty as they began to plead with the Clergy and had brought the matter to issue before the Synod could rid themselves of these Lay Spectators or rather overseers of their waies and actions A second errour was the yoking of the Bishops power under that of the Synods For they had little
or no power by the Canon that was not under their controle neither in admission or deprivation of Presbyters or others determining of any cause Concil Brit. 260 263. nor passing sentence of excommunication and this could not but much hinder the hasty growth of Antichrists power in this Kingdome nor could it ever be compleated so long as the Synods had the chiefe power Neverthelesse the inthralled spirits of the Clergy and terror of the Papall thunderbolt in continuance of time surmounted this difficulty and Synods became so tame and easily led as if there had been but one Divell to rule amongst them all For if any quick eye or active spirit did but begin to peep or stir the Legate e latere soon reduced him into ranke and kept all in awe with a sub poena of unknown danger A third errour was the allowing of peculiars and exemptions of Religious Houses from ordinary jurisdiction and this was an errour in the first concoction a block in the way of Prelacy and a clogge to keepe it down This errour was soon felt and was occasion of much mutiny in the body Ecclesiasticall but exceeding profitable for Rome not onely in point of Revenue by the multitude of appeales but especially in maintaining a party for the Roman See in case the Prelacy of England should stumble at the Supremacy of Rome Otherwise it seemed like a wenne upon the body rather then any homogene member and without which certainly the English Prelacy had thriven much better and the Roman chaire much worse In all which regards I must conclude that the Prelaticall government in England was as yet like a young Bear not fully licked but left to be made compleat by time and observation CHAP. XVI Of the Saxon Common-weale and the government thereof and first of the King HAving already treated of the Saxon Church in order I am now come to the Republique which in all probability will be expected to be suitable to their originall in Germany whereunto having relation I shall first fall upon the persons and degrees abstractively then in their assemblies and lastly of their Laws and customes The Saxons in their first state in Germany were distributed into foure classes viz. the Nobles the free-men the manumitted persons and the bond-men Under the Nobility and from them arose one that was called a King of whom I shall speake a part the two last differed onely in the bare liberty of their persons and therefore may be comprehended under one head as they were in their originall A King amongst the Saxons in probability was anciently a Commander in the field an Officer pro tempore and no necessary member in the constitution of their state for in time of peace when the Common-wealth was it selfe the executive power of the Law rested much in the Nobility but in times of warre and in publique distractions they chose a Generall and all sware obedience unto him during the war Witikum gest Saxon. lib. 1. it being finished the Generall laid down his command and every one lived aequo jure propria contentus potestate But in their transmigration into Britaine the continuance of the war causing the continuall use of the General made that Place or Office to settle and swell into the condition of a King and so he that was formerly Dux became Rex there being no more difference in the nature of their places then in the sence of the words the one signifying to lead the other to governe so as he that formerly was a servant for the occasion afterwards became a servant for life yet clothed with Majesty like some bitter Pill covered with Gold to make the service better tasted Nor was the place more desirable if duly considered For first his Title rested upon the good opinion of the Free-men and it seemeth to be one of the best Gems of the Crown for that he was thereby declared to be most worthy of the love and service of the people Yet was the ground of their election so uncertaine as a man might imagine that sometimes there appeared more of the will then of the judgement in it that it might be said to be the more free for they neither excluded women nor children further then present occasions lead them The West-Saxons deposed Seburg their Queen because they would not fight under a woman M. Westm An. 672. M. Westm An. 912 919. Tacit. Cragius but the Mercians obeyed Elfled their Queen and under her fought valiantly with good successe against the Danes imitating the custome of the Sitones or Norwegians in Germany as they might borrow it from the Lacedemonians A custome it was so much the more honourable by how much it demonstrateth freedome and that the worth of the people rested not so much in the head as it s diffused through the whole body And it seemeth to runne in the blood of an English man even to this day to be as brave under a single Queen as under the most valiant King if not much more and still to strive to be as famous for the defence of Majesty whereever they set it as the Britons were of old Nor were they different in their respect of age from that of the sex for though after the death of Edmond Edwin or Edgar were to have succeeded in the Crown by the right of descent yet the States would not admit them because they were minors but the Mercians admitted Kenelme a child of seven yeeres old to be their King They likewise excluded not bastards till the Clergy interposed for they having wound themselves into the Councels of the Kingdome procured a constitution to back them in the election of Kings Legitime c. Let the Kings be legally chosen by Priests and Elders and not such as are begotten by adultery or incest Which constitution was made in a Legatine councell Mag. cent 8. cap. 9. An. 747. and confirmed by great Offa The rule of their election was the same with that in Germany viz. to elect the chiefest out of the chiefest family that is Tacitus the chiefest for worth not by descent yet the honour they bare to their brave Kings who had deserved well made some to honour their posterity and to chuse their eldest after their decease and so in time Crownes were taken up by Custome and election often times subsequent was accounted but a ceremony unlesse the people will dispute the point Secondly this election was qualified under a stipulation or covenant wherein both Prince and people were mutually bound each to other the people to defend their King which the Historian saith was praecipuum Sacramentum Tacitus and the Prince to the people to be no other then the influence of the Law sutable to that saying of Aethelstan the Saxon King Concil Brit. p 397. seeing I according to your Law allow you what is yours doe you so with me as if the Law were the sole umpire between King and people and unto
which not onely the people but also the King must submit The like whereunto Ina the great Saxon King also Ll. Inae Lamb. No great man saith he nor any other in the whole Kingdome may abolish the written Laws Kings furthermore bound themselves at their entrance into the Throne hereunto by an oath as it s noted of Canutus unto whom after Aetheldred was dead the Bishops Abbats Dukes Miror cap. 1. sect 2. and other Nobles came and elected him to be their King and sware fealty unto him and he againe sware to them that Secundum Deum secundum seculum c. viz. according to the Lawes of God and of the Nation he would be a faithfull Lord to them Wigortn An. 1016. It s probable I grant that the praecipuum Sacramentum formerly mentioned was in the first nature more personall for the defence of the person of their leader whiles he was their Captain because it much concerned the good of the Army and without whom all must scatter and bring all to ruine and this the words of the Historian doe evidence But the safety of the whole people depended not on him after the warre was done and therefore the oath tied them not any further nor did the safety of the people afterwards when as the Saxons entred this Land so absolutely rest upon the person of the King especially if he proved unfit to mannage the worke and therefore the fealty that the people sware to their King was not so absolutely determined upon their persons otherwise then in order to the publique weale as may appeare from the Lawes of the Confessor who was within thirty yeeres after the reigne of Aethelstan formerly mentioned The words in English run thus All the people in their Folkmote shall confederate themselves as sworn bretheren to defend the Kingdome against strangers and enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulnesse and that within and without the Kingdom of Britaine they will be faithfull to him as to their Lord and King So as t is evident the Saxons fealty to their King was subservient to the publique safty and the publique safety is necessarily dependant upon the liberty of the Lawes Nor was it to be expected that the Saxons would endure a King above this pitch For those parts of Germany whence they came that had the Regiment of Kings which these had not yet used they their Kings in no other manner then as servants of State in sending them as Embassadours and Captaines Tacitus as if they claimed more interest in him then he in them and the Historian saith expresly that amongst those people in Germany that had Kings their Kings had a defined power and were not supra libertatem And this maxime of State became afterwards priviledged by Sanctuary for by the growth of Antichrist not only the Clergy but even their tenants and retainers were exempt from reach of Kings even by their own concession allowed of a Law that cut the throat of their indefined prerogative Ll. Sax. Ed. cap. 17. viz. That if the King defend not his people and especially Church-men from injury nec nomen Regis in eo constabit verum nomen Regis perdit Which Law however it might passe for currant Divinity in those daies yet its strange it should get into a publique act of State Nor was this a dead word M. Westm An. 756 758. Wigorn. An. 755. for the people had formerly a tricke of deposing their Kings when they saw him peep above the ordinary reach and this was an easie work for them to doe where ever neighbouring Princes of their own Nation watched for the windfals of Crowns This made the Monarchicall Crown in this Land to walke circuit into all parts of the Countrey to finde heads fit to weare it selfe untill the Norman times Thirdly the Saxons had so hammered their Kings in their elections and made him so properly their own as they claimed an interest not onely in the person of their Kings but also in their estates so as in some respects they were scarcely sui juris For King Baldred had given the Mannor of Malings in Sussex to Christchurch in Canterbury and because the Lords consented not thereto Concil Brit. 340. it was revoked and King Egbert afterwards made a new grant by advice of the Lords which shewes that the Demesnes of the Crown were holden sacred and not to be disposed of to any other use though pious without the consent of the Lords and herewith concurre all the Saxon infeodations attested and confirmed by Bishops Abbots Dukes and others of the Nobility under their severall hands Neverthelesse Kings were not then like unto plumed Eagles exposed to the charity of the Foules for food but had a royall maintenance suitable to their Majesty their power was double one as a Captaine other as a King the first was first and made way for the second as Captaine their power was to lead the army punish according to demerits and according to laws and reward according to discretion As Captaine they had by ancient custome the whole spoile left to their ordering by permission of the army Tacitus Exigunt Principis liberalitate illum Bellatorem equum illam cruentam victricem frameam and they were not wont in such cases to be close handed per bella raptus munificentiae materia the spoiles in these wasted parts of Germany bring little other then horses and armes But after they came into Britaine the change of soile made them more fat Horses and Armes were turned into Towns Houses Lands and Cattell and these were distributed as spoils amongst the Saxon souldiers by their Generals and this redounded to the maintenance of the State and port of the great men who were wont to be honoured non stipendiis sed muneribus Tacitus and the people used ultro viritum conferre principibus vel armentorum vel frugum aliquid but now upon the distribution of conquered Towns Houses Lands and Cattell in Britaine a yeerly product of victuals or other service was reserved and allowed to the Saxon kings by the people as the people allowed to Joshua his Land Jos 19.49 so as they needed no longer the former course of Offerings but had enough to maintaine their Royall port and great superfluity of Demesnes besides as their charity to the Church men does sufficiently evidence and by this meanes all the Lands in England became mediately or immediately holden of the Crown and a setled maintenance annexed to the same besides the casuall profits upon emergencies or perquisites of fellons or fugitives goods mines of Gold and Silver treasure trove mulcts for offences Miror 101 298 Ll. Edw. cap. 14 and other priviledges which being originally in the kings were by them granted and made Royalties in the hands of subjects as at this day To the increase of Majesty and maintenance there was an
parts of the County and this was anciently Sheriffs Torne and now is called the Sheriffs Torne which simply considered is but a Hundred Court Miror cap. 1. Sec. 16. or the Sheriffs Torne to keep the Hundred Court It was ordered to be kept twice every yeere viz. at the Lady day and Michaelmas Ll. Edgar cap. 5 Ll. Edw. cap. 35 or soon after unto this Court all the Freeholders of the Hundred repaired and there they the Bishop and Sheriffe executed the same power and worke for kind that they did in the County Court Ll. Canut p. 2. cap. 17. 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 then 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 subdivisions 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 tels us that the Germans in the executing of their Lawes Tacitus a hundred of the free men joyned with the chiefe Lord per pagos vicosque and in raising of forces one hundred were selected ex singulis pagis 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 adde that testimony of the Councell at Berkhamsted which speaking of the reduction of suits from the Kings Court ad pagi vel loci praepositum in other places it s rendred to the governours of the Hundred or Burrough And at this day in Germany their Countrey is divided into circuits called centen or canton and centengriecht and the Hundredere they call Centgraven or Hundred chiefes Cluer lib. 1. cap. 13. whether for government in time of peace or for command in time of warre the later 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 Malmesb. Reg. gest p 54. 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 Ll. Alured cap. 4. because of the multitude and reduced to the Lord or his Bailiffe and twelve of the Hundred and these twelve were to be sworn neither to condemne the innocent nor acquit the nocent This was the Hundred court which by the Law was to be holden once every moneth and it was a mixt Court of common pleas and Crown pleas Ll. Edw. 35 Ll. Aetheldr 1. Ll. Aethelst 20 for the Saxon Laws order that in it there should be done justice to thieves and the triall in divers cases in that Court is by ordeale Their common plees were cases of a middle nature as well concerning Ecclesiasticall persons and things as secular Ll. Edw. cap. 32 for the greater matters were by Commission or the Kings Writ removed as I formerly observed Ll. Aetheldr cap. 1. Lindenbrog Ll. Allm. Saxon. all Freeholders were bound to present themselves hereat And no sooner did the defendant appeare but he answered the matter charged against him and judgement passed before the Court adjourned except in cases where immediate proofe was not to be had albeit it was holden unreasonable in those daies to hold so hasty processe and therefore the Archb. of Yorke preferres the Ecclesiasticall or Canonicall way before this Lastly in their meeting Concil Brit. p. 273. Tacitus Glossar 155. as well at the Hundred as County Court they retained their ancient way of comming armed CHAP. XXVI Of the Division of the Hundreds into Decennaries THis was the last subdivision of the County and that rested upon the persons and it was either not at all or not so observable as to be worthy of the Roman story and therefore may rather be thought an extract from Moses law introduced by Alfred or his direction I say this rested on the persons and not upon the place for though the Centeners were comprehended with certaine bounds yet the Decenners were not limited but onely within the limits of the Hundred And of these also it appeareth to me there were divers sorts for such matters of controversie that did arise amongst the Decenners if of greater moment were referred to the chiefer Justices which were appointed super decem decanes which I conceive were ten chiefe pledges and these might beare the names of the Centeners although they be not the Centgraven and the rather I incline thereto because in all probability there must needs be above one hundred Freeholders in Hundredo and all free men were Decenners Ll. Canut c. 19. that is ranked into severall tens each one being pledge for others good abearing and in case of default to answer it before the judge and in case of default of appearance his nine pledges should have one and thirty daies to bring the delinquent forth to justice If this failed then the chiefe of those Decenners by the votes of that and the neighbour Decennaries was to purge himselfe and his fellow pledges both of the guilt of the fact and of being parties to the flight of the delinquent And if they could not this do then were they by their own oathes to acquit themselves and to bind themselves to bring the delinquent to justice as soon as they could in the mean time to pay the dammage out of the estate of the delinquent and if that were not sufficient then out of their own estate but if the delinquents estate was sufficient the surplussage thereof remained with the pledges And lastly the Master of the family was a pledge for his whole family Ll. Edw. cap. 15 Ll. Canut c. 28 This was the Law of Decenners and may seem to be somewhat a rigorous law not onely in case of delinquency but also for their abode for none of them might depart from their dwelling without consent of his fellow pledges Ll. Alured cap. 33. Ll. Canut p. 2. cap.
of the Archbishops Bishops Abbots and all the Princes of the Kingdome which connection shews plainly that there was Councell besides that of the Prelates and Princes Thirdly in matters of generall charge upon the whole body of the people the King used also the helpe of this grand Councell Ll. Gulielm c. 58. Spicil as may especially appeare in the charge of armes imposed upon the subjects it s said it was done by the Common councell of the whole Kingdome as is witnessed even by the Kings own law It may seem also that the grand Officers of the state were elected by such grand assemblie of the wise men for we finde that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people Antiq. Brit. fo 110. that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Liechfield resigned his Bishoprick in such like assembly if the meaning of Lanfrank be rightly understood Baron Anal. An. 1070. who saith in his letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of this Kings which may be called the first Magna charta in the Norman times by which the King reserved to himselfe from the free men of this Kingdome nothing but their free service Ll. Gulielm c. 55. in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common councell of the whole Kingdome and so asserts in one the liberty of the free men and of the representative body of the Kingdome These footsteps of the Parliament finde we in the Conquerours time besides other more generall intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conquerour he was yet made use of this additionall power of Parliament to perfect his designes and it may be more often then either of his sonnes that yet had lesse pretence of superlative power to countenance their proceedings William Rufus was a man of resolution no whit inferiour if not surpassing his father and had wit enough for any thing but to govern his desires which led him many times wilde and might occasion conceit that he was almost a mad King though he were a witty man therefore it s the lesse marvell if he used not the help of the Common councell more then needs must where Kings many times are told of that which they are loth to know Neverthelesse William the second could not passe over thirteen yeeres without a parley with his Commons and Clergy unlesse he meant to adventure a parley between them and his brother Robert who like an Eagle eyed his posture though he hovered afar of But Henry the first was more wise and being trained up even from the Cradle in the English garb moralized by learning and now admitted into the Throne found it the wisest course to apply himselfe to the rule of an English King viz. to winne and maintaine the good opinion of the people by consorting together with them under one Law and pledging himselfe thereto by taking unto wife one of the English blood-royall by this meanes reseised and reassumed the English in partnership with the Norman in their ancient right of government and reconciled the minds of the people under a lively hope of enjoying a setled government Nor were they greatly deceived herein for his course was lesse plannetary then that of either of his predecessors and yet we finde little said of his parley with his people in a Parliamentary way although more of his laws then of any of his predecessors The reason will rest in this that the writers of those times touch more upon matters of ordinary then politicall observation and regarded rather the thing then the place or manner how The Lawes therefore although they are not intituled as made in Parliament yet in the continuation of the History of Bede its noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae Bede hist l. 3. c. 30. which may give sufficient cause to suppose that he declined not the ancient way no more then he did the ancient Law CHAP. XLVII Of the Franchise of the Church in the Normans time THe Canon law that ever since Austins comming like Thunder rumbled in the cloud now breaks forth with confusion to all opposers It had formerly made many faire proffers of service to this Island but it was disaccepted as too stately to serve yet by often curtesies received it was allowed as a friend a farre of For the vast body of the Roman Empire like a body wasting with age died upward and left the Britons to their own Laws before the second beast was grown which being young was nourished under the Imperiall Law of the first beast till it grew as strong as its damme and began to prey for it selfe The Empire perceiving its gray haires and the youthfull courage of this upstart was glad to enter mutuall league with it the one to maintain the Ecclesiasticall Monarchy of the other and that the Imperiall Monarchy of the former and so became the Canon and Imperiall Law to be united and the professours to be utriusque juris But this parity continued not long the young beast looked like a Lamb but spake like a Lyon and contrarily the Eagle had cast its feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon law above the Imperiall yet allowing it to serve the turne and so the professors of both Laws became students in the Civill but practisers of the Canon This composition thus made beyond the Seas the great worke was how to transport it over into this Isle for the Emperours could intitle the Pope to no power here because none he had Austin the Monke undertakes the worke he offers it to the Britons under the goodly title of Universall Bishop but they kept themselves out of Canon-shot The Saxons allowed the title but liked not the power The Monk observed the stop and left time to work out that which present cunning could not being content for the present that a league of cohabitation should be made between the two Swords Ll. Edw. c. 3. though the spirituall were for the present underling not dispairing that it would worke out its owne way over the Saxon law as it had done over the Imperiall Nor did his conceit altogether faile for the Saxons by little allowed much and the Danes more although the main was preserved untill the Normans came upon the stage who made their way by the Popes leave and gave him a colour of somewhat more then ever any of their Saxon predecessors had done and to gaine the more quiet possession of the Crown to themselves allowed the Pope the honour of their Councell learned to draw the conveyance
summoned a Councell at Westminster but it was authoritate Regia and that there assembled magnae multitudines Clericorum Laicorum Conten Wigorn. An. 1127. tam divitum quam mediocrium and that upon the third day the debate was de negotiis saecularibus nonnullis The issue of all was that some things were determinata others dilata and other matters propter nimium aestuantis turbae tumultum ab audientia judicantium profligata Out of which may be probably concluded 1. That the Laity as yet were present in Councels with the Clergy 2. That they were all in one place 3. That they all had votes and that the major mumber concluded the matter 4. That certain persons used to determine of the major number by the hearing and that the votes were still clamore non calculis 5. That they held an order in debating of affaires viz. on some daies Ecclesiasticall and on other daies secular 6. That all matters concluded were attested by the King who as t is said did give his consent and by his authority did grant and confirme the same And upon the whole matter it will be probable that as yet Councels and those now called Parliaments differed not in kind although possibly there might be difference of names in regard that some might be immediately and mainly occasioned and urged by Temporall exigences and others by Ecclesiasticall but whether Temporall or Ecclesiasticall the first occasion was yet in their meetings they handled both as occasion offered it selfe Secondly as the Clergy could not attaine the sole legislative power so neither had they the sole juridicall power in Ecclesisticall causes for not onely in case of errour in the Ecclesiasticall courts was an appeale reserved to the Kings court as formerly in the Saxons time but even those things which seemed properly of Ecclesiasticall cognisance were possessed by the Kings Court in the first instance as that of Peter-pence which was a Church-tribute and might be claimed to be proper the Church cognisance much rather then Tythes and yet by the Law of this Kingdome in the Conquerours time it is especially provided Ll. Gulielm c. 20. Spicil 180. that defaults of payment of that duty shall be amended in the Kings Court and a fine for default was given to the King albeit that the Bishop was made the Collector and the Pope the Proprietor And many other particulars which were holden to be of Ecclesiasticall cognisance Kings would draw them within the compasse of maintaining the peace of the Church which properly belonged to them to defend and so had the cognisance of them in their own Courts and fines for invasion of the Church rights But because this may seem but colourable and by way of flattery of the Churches right and not in opposition thereof In other things it will appeare plainly that Kings were not nice in vindicating their own claim in matters which the Clergy held theirs quarto modo as namely in the case of excommunication a weapon first fashioned by the Churchmen and in the exercise whereof themselves were in repute the onely masters and yet in this were mastered by Kings whose Laws directed and restrained the swelling of that censure Eadmer hist p. 6. Ll. H. 1. cap. 5. and made it keepe measure whose Tenants and Officers or servants must not be medled with by this censure but by the Kings leave nor must they be called to answer but in the Kings Court That right still remained to them after the spoile made by the Hierarchy upon the rights of all the rest of the free men and therefore could not of right be called nova in the Historians sence seeing that it was no other then the ancient custome used amongst the Saxons before that the Clergy had either purpose or power to reach at such a height as afterwards by degrees they attained unto Furthermore the Hierarchy as they neither could possesse the legislative nor juridicall power in Church matters so neither could they possesse themselves for as yet they were the Kings men and the more the Kings men because they now thinke a Bishopricke but a naked commodity if not robed with a Barony Neverthelesse before that ever they knew that honour what ever the Canon was for their election yet both their title and power de facto was derived to them from the Kings who also invested them with Staffe and Ring nor had the Pope as yet though he had conquered the Hierarchy possessed himselfe of their colours but during all the Norman times the Kings maintained that trophie of the right they had from their predecessors notwithstanding the many assaults from Rome and treacheries of the Cathedrals within the Realm Eadmer Hist l. 2. p. 53. l. 3. l. 4. Eadmer hist l. 1. l. 5. Wigorn. An. 1128. Spicil 142. and albeit sometimes Kings were too weake to hold the shadow yet the convention of the States did maintaine the substance viz. the right of election without intermission as the examples of Lanfrank unto the See of Canterbury and Anselme and Ralph his successors and of Thomas into the See of Yorke and Ralph coadjutor to Thurstan Archbishop of the same See and of Gilbert into the See of London besides others doe sufficiently set forth whether it was because the convention of states was more stout or that the Bishops now wedded to temporall Baronies were so unquestionably interessed in the publique affairs of the Common-weale that it was against common sence to deny the States their vote and cognisance of their election I cannot determine yet it is a certaine truth the more Baron the lesse Bishop and more unmeet for the service of Rome politiquely therefore it was done by Kings to hold these men by a Golden hooke that otherwise had prostituted themselves to a forraine power and proved absolute desertors of their Countries cause which now they must maintaine under perill of the losse of their own honour In the next place as they were the Kings men so their Bishopricks and Diocesses were under the Kings power to order as by the advise of the Bishops and Baronage should be thought most convenient either to endow an other Bishop with part thereof and so to make two Diocesses of one Eadm l. 4. p. 95. 96. as befell in the case of the Diocesse of Lincolne out of which the Diocesse of Ely budded in the time of Henry the first or to endow a Monastry or other religious foundation with part and exempt the same from all Episcopall or ordinary jurisdiction as in the example of the foundation of the Abby of Battall in Sussex in the time of William the Conquerour may appeare Spicil 65. Lastly what ever the first intention of this recited Statute were it may probably be judged that it was but a noise to still the Clergy and that it never had more then a livelesse shape not onely in regard of the before-mentioned particulars but especially in regard of that subservient
time and occasion to worke the issue which doubtlesse was much and had been more had the Norman race continued in the Throne But falling out otherwise the English blood prevailed in the head and the Language continued possession mixed onely with some Norman words as the people were also a mixed people So as the Language was changed though it was altered Lastly it s affirmed that the Normans did impose a new custome called Coverfeu and its thought by some to be a meere vassalage that every man at the noise of the Bell every night must put out both fire and Candle and yet is a matter of so small concernment that of being in its own nature convenient Scotland received it without such coercion and can be reputed for no other then a seasonable advice which any Corporation in time of danger might order within their own Precinct without transgressing the liberty of the subjects Of lesse consequence is that change which is alledged was brought in by the Normans in the sealing of Deeds of conveyance by seting a print upon Wax annexed to the Deed which formerly was wont to be by setting a print upon the blanke at the end of the Deed and yet it s looked upon by some as a trophee of conquest or absolute government concerning which I will not dispute whether the Normans first brought in this course but shall rest in this that the King being about to compleat the unity of the Laws in the superstructure as well as in the fundamentals if herein and in some other particulars the English submitted to the Normans they likewise stooped to the English Law in other things and therefore such concurrences ought not to be imputed unto a conquering power but unto moderation amongst a company of wise men Thus having glanced at the changes of Property Lawes Tenures Language and some customes we come to that which is the maine occasion of all these complaints I meane unlawful Taxes afforstinges and other such oppressions upon the estates of the people concerning which I purpose not to contend for much thereof is like to be true the Norman Kings especially the two Williams being under continuall occasion of expence many warres more provocations which kept them ever in action and that wrought their spirits into an immoderate heat little inferiour unto rage and so they might soon outreach their bounds and sit heavy on the people and in such occasions no man escaped Norman nor English Clergyman nor Layman nor did the Kings themselves come off such gainers but that they might sometimes put up their gettings into their own eyes and see never a whit the worse And yet to doe them right they were not alwaies of such sad influence but had their lucida intervalla especially he that had the least cause I mean the Conquerour who certainly was a man of a serious regard and did not onely remit sometimes his rigour in exacting where he ought not but also forbare to require that which he had some colour to demand for whereas the Daneguelt was left unto him in the nature of an annuity he was contented to turne it into a summe in grosse and to demand it onely Cum ab exteris gentibus bella vel opiniones bellorum insurgebant Hoveden and it was then done consultis magnatibus These things thus considered might have mollified somewhat the Pennes of angry Writers and where they faile may be caution to Readers to consider occasions and dispositions of Princes and so long as Laws hold in title to construe the irregularities of Princes to be but as steps out of the path to avoyd a little dirt that a man may get home the more cleanly and therefore rightly can derive no other title of absolute soveraignty to their successors then to hold by infirmity And thus the Government under the Normans at the worst was but like that of childhood following sudden and present desires not wise enough to plot for absolute Monarchy nor to keepe off a polity which still rooted underneath though the fruit while it was now green was harsh and unpleasant I shall conclude this Norman discourse with this advertisment that notwithstanding the words Conquerour and Conquest have often faln from my Pen and hereafter may doe the like yet can I see no reason why divers succeeding Kings comming to the Crown by argument of the Sword and not by right of descent may not deserve the Laurell as well as the first Norman King onely because fame hath fancied him that Title under a kind of prescription I do the like CHAP. LVII Of the Government during the Reignes of Steven Henry the 2. Richard the 1. and John And first of their Titles to the Crown and disposition in government I Have cut out this portion of one hundred twenty and five yeeres containing the reignes of these Kings apart from their successors in regard of their titles all of them being under one generall climate and breathing one ayre of election and compact between them and the people Now was the issue male of the stocke of Normandy quite wasted I meane in relation to succession by inheritance for although it was the lot of Henry the first to have many children yet it was not his happinesse to have many lineal nor to hold what he had nor of them all was there left above one that might pretend to the Crown and it a daughter who was the great Grandmother to all the succeeding Kings till this day Onely King Steven Steven like an unruly ghost comming in upon the Stage troubled the play during his time This daughter of Henry the first was married to the Emperour Henry the fourth and surviving him was in her fathers life time acknowledged to be his heire the Sea having formerly swallowed up the remainder of his hope unto her the Lords sware fealty as to the next successor in the Throne after the decease of her father being led thereto by the instigation of her father whose conscience told him that the Title to the Crown by inheritance was weakned by his own president himselfe comming to the same by election of the people contrary to the title of his brother Robert Neverthelesse this was not the first time that the English Crown refused to be worne by practice for Henry the first being dead Steven the younger sonne to a younger sister of Henry the first put up head who being of the Royall stemme a man and a brave Souldier by the ancient course of the Saxons had title enough to be thought upon in a doubtfull succession Besides he was a rich man and had enough to raise up his thoughts to high undertakings and a Brother a Bishop and Legate to the Pops here in England one who was of a high spirit and vast power advantages enough to have quickned a much duller spirit then his was who was the sonne of a daughter to William the Conquerour and to make him yet more bold he had the upper
the Conquest and during the reigne of these severall Kings UNder the title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdome and learning and advancement into place of government and honour These were in the Saxons times the flower of the people flourishing onely from the honour that ascended from beneath their deportment then was full of cheere and safety to the people after that royalty sprung up the influence thereof upon them exhaled such a reciprocall interest backe againe as made them lesse regardfull of their own roote Whereas we see the more mature flowers are the more propence to turne head and looke downward to their own originall This distemper was yet much worse by the comming in of the Normans whose Nobility besides their titles of honour in their own Country obtained by custome such command and power amongst the meaner sort being souldiers under them in time of the service in the field that when the warres had breathed out their last neither of them could forget or were very carefull to lay aside This was observed by Kings and advantage espied to clime to the top of Monarchy by the helpe of these great men whom if they could make their own all would be theirs and wherein they had prevailed much more then they did if they had been wise enough to have maintained them in unity but in that failing Kings were necessitated to take parties and serve the Nobility to save the maine and thus continued they a considerable party in the gouernment of this kingdome from the Normans for the space of two hundred yeeres well nigh to the prejudice both of the growth of the prerogative of Kings and liberties of the Commons and benefit of none but the Lords who in those unquiet times were the chiefe Commanders in the field This errour of Kings was soon espied but could not be avoyded its naturall to man to be proud and to such to fall into contention another course therefore is taken viz. to raise up some so high as may overtop all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must beare their power where they cannot be personally present yet it is dangerous to bestow too much upon one man for there is no man fitting to be a King but himselfe that is a King and where kings are immoderate in bestowing power it many times workes much woe to the people and not seldome sorrow to the Kings themselves The place of the chiefe Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-generall throughout the kingdome A power and worke too great for any one man in the world that can make no deputies to mannage it Hoveden 443 375. Nubr lib. 4. cap. 14. and yet in those times you shall meet with one man made up of an Archbishop a Legate and chiefe Justice of England or a Bishop a Lord Chancellor a Legate and chiefe Justice of England and a strange kind of government must that needs be wherein the servants Throne is above his masters and a subject shall have a plenitudinary power beyond that which his Lord and King was as the times then were was capable of By these and such like pluralities the great men of England kept the Commons below and themselves above and probably rendred the temper of the government of this kingdome more Aristocraticall then in after ages And if their personall authority was of such value how much rather in their joynt assembly or court of Councell concerning which I must agree that as in their originall in Germany they did consult and determine of the meaner matters that is to say of matters concerning property and therefore were in their most ordinary worke meetings of Judges or Courts of Judicature and also matters of defensive warre because themselves were the Commanders and lastly in matters of sudden concernment to the State not onely to serve as eyes to foresee but to provide also if they can or otherwise to call in the ayd of the peoples advice so also they continued this course and it may be now and then as all Councels have done strained their endeavours beyond their reach especally since the Normans entrance and therefore I shall not deny but that they alone with the King and without the Commons have made many Laws and Constitutions some of which now are called Statutes although many of them in truth are no other then rules for Judicature which ordinary Courts may frame or Judgements in particular cases such as are the constitutions at Clarindon in Henry the seconds time and many other Laws which are reported to be made between the King and his Lords Nor can I looke upon such laws otherwise then as upon judgements in Courts of Justice in new points of controversie grounded upon ancient grounds which properly are not new Laws but the ancient rule applied to new particulars and being so published to the world may beare the name of Laws Ordinances Constitutions or Judgements the word Statute being of later times taken up and used in a more restrictive sence of which more in their due place Now that this Court was a setled Court of judicature Hoveden An. 1175. and so used may appeare in that fines were leavied therein and Writs of right determined as in that great case between the two Kings of Navarr and Castile Ibid. referred to the judgement of Henry the second and tried in this Court it s said that the triall was by plea and if need wereby battell The Judges in this Court were the Baronage of England for the entry of judgement in that great case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. so as though doubtlesse many were absent some being enemies others discontented others upon other occasions yet all might claime their votes as Barons The President over all the rest was the chiefe Justice or if the King were present then himselfe and by him was the sentence or judgement declared according to the entry in the case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councels which weakned the esteem of conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle and by this means the necessity of calling together the whole body representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its juridicall power to the three Courts at Westminster viz. the Kings bench Common pleas and Exchequer saving still the supreame judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free
as foure yeeres for within that time Richard Lucy one of the Justices had renounced his Office and betaken himselfe to a cloister and yet was neither named in the first commission nor in the latter nor did the last commission continue five yeers Hoved. An. 1184. for within that time Ralph Glanvile removed from the Northerne circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appeare though little to the honour of the justice of the Kingdome or of that Judge however his book commended him to posterity I take it upon the credit of the reporter Co. jurisd c. 33 that this Itinerary judicature was setled to hold every seven yeeres but I finde no monument thereof before these daies As touching their power certainly it was in point of judicature as large as that of the court of Lords though not so high it was as large because they had cognisance of all causes both concerning the Crown and common pleas and amongst those of the Crown this onely I shall note that all manner of falshood was inquirable by those Judges which after came to be much invaded by the Clergy Hoveden Glanvil l. 14. c. 7. I shall say no more of this but that in their originall these Iters were little other then visitations of the Countrey by the grand Councell of Lords Nor shall I adde any thing concerning the Vicontiel courts and other inferiour but what I finde in Glanvile that though robbery belonged to the Kings court Glanv lib. 1. cap. 2. yet thefts belonged to the Sheriffs Court and if the Lords court intercepts not all batteries and woundings unlesse in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour trespasses Idem lib. 9. 10. besides common pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certaine Laws of Iudicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matters of the Crown as of property being desirous to observe the changes of Law with the times and the manner of the growth thereof to that pitch which in these times it hath attained We cannot finde in any story that the Saxon Church was infested with any Heresie from their first entrance till this present generation The first and last Heresie 1. Heresie that ever troubled this Island was inbred by Pelagius but that was amongst the Britons and was first battered by the Councell or Synod under Germanus but afterwards suppressed by the zeale of the Saxons who liked nothing of the Brittish breed and for whose sake it suffered more happly then for the foulnesse of the opinion The Saxon church leavened from Rome for the space of above five hundred yeeres held on its course without any intermission by crosse doctrine springing up Hoved. 585. till the time of Henry the second Then entred a sect whom they called Publicans but were the Albigenses as may appeare by the decree of Pope Alexander whose opinions I shall not trouble my course with but it seems they were such as crossed their way and Henry the second made the first president of punishing Heresie in this Kingdome unders the name of this Sect whom he caused to be brought before a councell of Bishops Nubrig l. 2. cap. 13. who endeavoured to convince them of their errour but failing therein they pronounced them Hereticks and delivered them over to the Lay power by which means they were branded in the forehead whipped and exposed to extremity of the cold according to the decree of the Church died Decret Papae Alexand. Hoveden 585. This was the manner and punishment of Hereticks in this Kingdome in those daies albeit it seemeth they were then decreed to be burnt in other countries if that relation of Cogshall be true which Picardus noteth upon the 13 chapter of the History of William of Newberry out of which I have incerted this relation Another case we meet with in Henry the seconds time concerning Apostacy 2. Apostacy Bracton lib. 3. cap. 9. which was a crime that as it seems died as soon as it was born for besides that one we finde no second thereto in all the file of English story The particular was that a Clerke had renounced his baptisme and turned Jew and for this was convicted by a councell of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortall and the manner of conviction of both by a councell of the Clergy and delivered over to the Lay power who certainly proceeded according to the direction of the Canon or advice of the councell These if no more were sufficient to demonstrate the growing power of the Clergy however brave the King was against all his enemies in the field Treason 3. Treason was anciently used onely as a crime of breach of trust or fealty as hath been already noted now it grows into a sadder temper and is made all one with that of laesa Majestas and that Majesty that now a daies is wrapped up wholly in the person of the King was in Henry the seconds time imparted to the King and Kingdom as in the first times it was more related to the Kingdome And therefore Glanvile in his booke of laws speaking of the wound of Majesty exemplifies sedition and destruction of the Kingdome to be in equall degree a Lib. 1. cap. 2. wound of Majesty Lib. 10. cap. 1. with the destruction of the person of the King and then he nameth sedition in the Army and fraudulent conversion of Treasure trove which properly belongs to the King All which he saith are punished with death and forfeiture of estate and corruption of blood for so I take the meaning of the words in relation to what ensueth Fellonies 4. Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with losse of member and estate This was the law derived from the Normans and accordingly was the direction in the charge given to the Justices itinerant in Henry the seconds time as appeareth in Hoveden But treason or treachery against the oath fealty Ll. Hen. 1. c. 25. or bond of allegiance as of the servants against the Lord was punished with certaine and with painfull deaths and therefore though the murther of the King was treason yet the murder of his sonne was no other then as of another man unlesse it arose from those of his own servants Ll. Hen. 1. c. 79 The penalty of losse of estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the moveables Glanvil lib. 7. cap. 17. was to the Sheriffe of the County unto whose cognisance the case did belong and the land went to the Lord immediately and not to the King But in all cases of Felony of
like manner 11. That debts between Clerks due are determined in the temporall courts 12. That Bishops are compelled by distresse to cause Clerks to appeare in Lay courts without cause 13. That the Church looseth its right by the ceasing of rent or pension by the space of two yeeres 14. That Nuns are compelled to sue in the Lay courts for their right in possessions befalling by decease of their kindred 15. That Churches are deprived of their priviledges till they shew Quo warranto they hold them 16. That Ecelesiasticall Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusals of Clerks presented are examined in the Lay courts 18. That patrons of Religious Houses do oppresse them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay courts 20. That the King suffers his Livings to be vacant for many yeeres 21. That the Clergie are wronged by the Statute of Mortmaine Here 's all and more then all that 's true and more then enough to let the reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtaine was to be attributed to the resolution of the Laity and not to any neglect in themselves for the Archbishop died in the service and its thought that grief for these maters was no little cause thereof But the times within a while grew troublesome Antiq. Brit. and the King in pursuit of the French warres being unadvised in in his way angred the people by his arbitrary levies of men and money Articuli cleri as it brought forth a State scoule little inferiour to a quarrell And to pacifie the Clergy he granted them the Writ de consultatione habenda in all matrimoniall and testamentary cases Stat. de consul tat 24. E. i. which were of their least doubted priviledges and this qualified the first Article of complaint next foregoing if such cause they had of complaint and this was all that the Clergy got at Edward the firsts hands Edward the second was a man that was neither well affected to Rome nor weake in spirit and yet so unhappy that his way neither promised good successe nor ever had it and so he became a servant unto the humours of his servants to keep his head above water but especially after he was chased by the Scots and quite out of breath he cals for help of all but first of the Clergy and bespeakes them with the Ordinance of Articuli cleri wherein he gives some satisfaction to the complaints formerly mentioned which it seems by Baronius were exhibited in Parliament Ecclesiasticall cognisance extendeth unto Tythes Oblations cap. 1. and Mortuaries and to pecuniary recompence In the first times neglect or deniall of Church-duties was punished in the Kings court by fine Afterwards the Bishop was joyned in that worke Ll. Alfred c. 9. Ll. Edw. cap. 6. and the tythable goods were seised eight parts whereof was taken to the Lords and the Bishops use by moities a ninth part left to the owner and the tenth to the Church Ll. Canut c. 8. nor had the Bishops any peculiar Courts of cognisance of causes till the times of the Normans nor as yet in those times had they power to all intents for though it be true that the Roman tribute of Peter-pence was allowed by the Conquerours law to the Bishops court Ll. Gul. 20. cap. Spicileg 180. yet we finde no law for Tythes and other profits to be recovered by the Ecclesiasticall court till about the end of Henry the seconds reigne or King Stevens time for at a Councell at London in Henry the seconds time it was ordained that three summons in the Popes name should be made to such as payed not their Tythes Binius Tom. 7 fo 661. An 1173. and in case they then refused they should be anathema and after that time in a Councell at Oxford under Steven Archbishop of Canterbury it was decreed that the Laity should be intreated first to pay their Tythes Baronius Annal. 1222. cap. 19. and then if necessity require that they should be compelled by Ecclesiasticall censure so as their power crept up by degrees in recovering of Church-duties as it did in testamentary matters and at length Henry the third worne and spent with the Barons warres about his latter end yeelded to Boniface the Archbishop his importunate demands and first gave liberty to the Clergy to be their own Judges and yet the Lay Judges although divers of them were Clergy men did not suddenly forbeare till this law came which gave some satisfaction to the first and fourth Articles of complaint foregoing Ecclesiasticall cognisance extendeth not to a fourth part of the Tythes of any Living cap. 2. nor to pecuniary mulcts for sinne saving by way of commutation The complaint of the Clergy in Henry the thirds time was against the Kings prohibition in case of Tythes indefinitly for in those times afterwards in Edw. the firsts time the Kings court had the cognisance of all Tythes and therefore in the Statute of VVestm 2. c. 5. the Writ of Indicavit was allowed in case of right of any portion of Tythes yet the Church still gained ground and about or before the death of Edward the first the Temporall Judge had yeelded unto the Clergy the cognisance of a portion of Tythes under the value of the fourth part Artic. 1. for in the Article next foregoing the Clergies complaint was that the Kings Justices held cognisance of the fourth part here they were confined thereto by this law which the Clergy could never remove For violence done to Clerks the offender shall render dammage in the Kings Court but Excommunication cap. 3. Penance and Commutation shall be in the Bishops court The Canon law had an ancient claime to the Protection of Clerks both as touching their persons and estates and prevailed so farre as they were thereby imboldned to offer violence unto others But as I formerly shewed by a Law in Henry the seconds time the Temporall Judge resumed his originall power and this became a sore evill between the Clergy and Laity for though it were allowed that Clerks should not be sued but before the Ecclesiasticall Judge in such cases yet it was no warrant for the Laity likewise to be called before the Ecclesiasticall Judge in such cases and therefore the Clergies complaints shew that the matter was doubtfull and that the Lay Judge generally maintained his jurisdiction although sometimes he disclaimed it as it may appeare in the case of a trespasse in the nature of a riot committed upon the priory of St Johns of Jerusalem in the seventh yeere of Henry the third when as it was adjudged per curiam that it belonged to the Ecclesiasticall court to punish Fits Harb 7 Hen. 3. prohibition 30 But
lost man had lesse care of such smaller matters and therefore allowed that his Judges of Assizes should be licenced by the Archbishop to administer oathes in their circuits in the sacred times of Advent and Septuagessima Antiq. Brit. Eccles 209. and this course continued till Henry the eights time The Clergy having thus gotten the bridle gallop amaine they now call whom they will and put them to their oathes to accuse other men or themselves or else they are excommunicated Henry the third withstood this course if the Clergy mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the law holds its course and in pursuance thereof we finde an attachment upon a prohibition in this forme ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned Regist fo 36. and by Ecclesiasticall censures constrained Lay persons men or women to appeare before him to sweare unwillingly at the Bishops pleasure to the great prejudice of our Crown and dignity and contrary to the custome of the Kingdome of England And thus both King and Clergy were at contest for this power over the peoples consciences to which neither had the right otherwise then by rules of law Bigamists shall not be allowed their Clergie Stat. Bigam 4 Edw. 1. cap. 5 whether they become such before the Councell of Lions or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergy seemeth by this law that they had Clergy that were married once and againe and yet before and after the Councell were admitted as Clerks in the judgement of the Law But the Generall councell interposes their authority and deprives them that are the second time married of all their priviledges of Clergy It was it seemeth twenty yeeres and more after that Councell before the Church-men in England were throughly reformed for either some were still Bigami at the making of this law or as touching that point it was vaine nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whither this slow reformation arose from the defect in law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the canons of Generall councels Generall councels eo nomine had formerly of ancient times gotten a kind of praeeminence in this Nation but by what meanes is not so cleare In the Saxon times they were of no further force then the Great councell of this Kingdome allowed by expresse act For the Nicene faith and the first five Generall councels were received by Synodicall constitutions of this Kingdome made in the joynt meeting both of the Laity and Clergy and during such joynt consulting the summons to the Generall councels was sent to the King to send Bishops Abbats c. but after that the Laity were excluded by the Clergy from their meetings and the King himselfe also served in the same manner the summons to the Generall councell issued forth to the Bishops immediately and in particular to each of them and to the Abbats and Priors in generall Bineus tom 13 Ps 2. pag. 674. M. Paris by vertue whereof they went inconsulto Rege and sometime Rege renitente and appeared either personally or by proxy Others came as parties to give and receive direction or heare sentence in matters tending to spirituall regards and for this cause issued summons sometimes even to Kings as at the councell of Lions aforesaid it s said that the Pope had cited Reges terrae alios mundi principes dictum principem meaning Henry the third M. Paris An. 1245. the matter was for assistance to the holy warre and to determine the matter Henry the third and his Clergy men And as in that case so in others of that kind Kings would send their Embassadours or Procters and give them power in their Princes name interessendi tractandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concerne fidei orthodoxae fulciamentum Bineus Tom. 3. Ps. 2. pag. 913. Tom. 4. Ps. 1 pag. 14. Regumque ae principum pacificationem or any other particul r cause which occasionally might be incerted so long then as Kings had their votes in the Generall councels they were ingaged in the maintenance of their decrees and by this meanes entred the Canon law into Kingdomes Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into forraine parts where the Generall councels were holden and that it was thrift for them to send such proctors that might not altogether spend upon the Kings purse allowed Bishops and Clergymen to be Proctors for their Princes that in the negative they might be pii inimici and lesse active but in the affirmative zealous and so make the way wider by the Temporall and Spirituall vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the ingagement and respect which these his proctors had in councels they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Neverthelesse the case sometimes was such as could not expect favour and then as the Kings temper was they would sometimes ride it out with full saile and to that end would either joyn with their Ecclesiasticall Proctors some of the Barrons and great men of their Realme to adde to the cry and make their affaires ring louder in the eares of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to looke to the rights of the Crown as Henry the third did at the councell at Lions and this sounded in nature of a protest Foxe Mart. Ps. 2. 263. and within the Realm of England had the force of a proviso or saving But if the worst of all came to passe viz. that the councell passed the cause against Kings without any inhibition or injunction yet could it not bind the law of the Land or Kings just prerogatives no not in these times of Romes hower and of the power of darknesse For at a Synod holden by Archbishop Peckam An. 1280. the acts of the Councell of Lions was ratified and amongst others a Canon against non residency and pluralities and yet neither Councell nor Synod could prevaile for in Edward the seconds time an Abbat presenting to a Church vacant as was supposed by the Canon of pluralities the King whose
Chaplaine was disturbed enjoyned the Abbat to revoke his presentation upon this ground Cum igitur c. in English thus Antiq. Brit. Eccles fo 209. Whereas therefore that decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whiles they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their benefices c. And if this present law be considered whereof we now treat which tooke leave to enact a sence upon a former Canon so long since made and which is all one to make a generall Councell will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute 30 aff pl. 5. as was then conceived it will evidently appeare that the power of a Councell made up of a mixture of a few votes out of severall nations or the major part of them being unacquainted with the Laws and customes of Nations other then their own was too meane to set a law upon any particular Nation contrary to its owne originall and fundamentall Law And as the voters sent to the generall Councels from England were but few so neither were the Proctors as may appeare from this that Pope Innocent out of his moderation if we may believe it and to avoyd much expence as he saith did order that the number of Proctors in such cases should be few but in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevaile yet so blemish the contrary party that what the Pope should get must cost him losse of spirits if not blood and although the Bishops being fast friends to the Pope by vertue of their oath did prevaile in power and the Pope had the controll of the Councell yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the minds of the greater number of persons present though their votes were fewer To avoyd this difficulty therefore for more surety sake the Popes enlarged the number of the voters for whereas it seemeth to be an ancient rule that onely foure Bishops should goe out of England to the generall Councell Hoveden An. 1179. in after ages not one Bishop could be spared unlesse in cases of great and emergent consequence as may appeare by the Popes letter to Henry the third and the case required it for the oppressions of the Pope began to ring so loud M. Paris An. 1245. as the holy chaire began to shake Neither did Kings confine themselves to any certaine number of Proctors notwithstanding the Popes moderation but as the case required sent more or lesse as unto that Councell at Pisa for the composing and quieting that great schisme in the Popedome Henry the fourth sent solemne Embassadours and with them nigh eighty in all But unto the Councell at Basell Henry the sixth sent not above twelve or thirteene as Mr Selden more particularly relateth Spicil 215. And unto the councell at Lions formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extorsions of the Court at Rome their Legates and Emissaries The summe of all will be that the Acts of generall Councels were but councels which being offered to the sence of the Parliament of England might grow up to the degree of Lawes if the Parliament liked them Neverthelesse Nation all Synods Synods in England undertooke the quarrell of Generall councels for Archbishop Peckham in a Synod 1280. enjoyned the constitutions made in the Councell at Lions to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong and before him Boniface made constitutions in opposition to the customes of the Kingdome so as the matter was now come to a kinde of contest whither Synods or Parliaments should hold supremacy in doubtfull cases concerning the limits of the Ecclesiasticall and temporall power for henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now thinke themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inbibendo quod sicut Baronias quas de Rege tenent deligunt nullo modo praesumunt concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt Rot Parliam 18 H 3. num 17. quod si fecerint Rex inde se capiet ad Baronias suas And this prevailed so farre as the Bishops durst not adventure too farre least they should goe beyond their guard and therefore they come and aske leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of bastardy wherein they would have had their consent that children borne before marriage to be made legittimate by the marriage subsequent Stat. Merton cap. 9. and yet they could not prevaile for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon law and the laws of the Normans sided with them and so they obtained not their desire although they still retained the triall of generall bastardy unto themselves Neverthelesse the times were such as Kings being too weakly assisted by the people and the Clergy strongly seconded by the Pope they tooke advantage of those times of distraction so as to hold themselves no further obliged to the King then the Pope and their own covetousnesse would allow them and to make all sure they had setled it so farre as they were able by a constitution that the Clergy were not bound to ayd the King Papa inconsulto Antiq. Brit. and they put it in practise in a Synod under Archbishop Winchelsie Anno 1295. in the time of Edward the first and although the King prevailed in the conclusion at that time yet from the times of Henry the third the Clergy for future times granted their aides to the King by themselves and a part from the rest of the body of the Kingdome and held themselves not bound by any ayd granted by the Parliament albeit that their own ayds granted in their Synods were not obligatory unto the body of the Clergy in this Kingdome unlesse first allowed and confirmed by the Parliament And thus is England become like a two bodied monster supported with one paire of legs CHAP. LXVII Of the condition of the free men of England of the grand
regard their own liberties in which the Lords had first wrapped up their own claimes Thus comes the counsels of such as have been notoriously exorbitant to be scanned and to bring these into frame all runne out of frame the Barons warres arise and thrive according as interests doe concenter more or lesse the issue is like that of a drawn battaile wherein he that continueth last in the field is glad to be gone away and so the Title is left to be tried upon the next advantage that shall arise Yet had Kings gotten one step forwards to their designe which was that they now had to deale with a divided Baronage It was the birth of ambition and it was nourished by the same milke for those that side with the King are become Magnificoes next to the Kings person and the sole managers of all the great affaires of State concurrant with their own designes under-board But the other Lords are in account rurall standing further off and looking on at a distance are laid away as supurfluous and as they themselves are out of the game of great men so grow they mindlesse of their interest in the great affaires yet of these there is diversity for some sport themselves in their condition others observe the irregular motions of those above and watch their owne time This was the first advance of that society which was afterwards called the Privy-Councell being a company of choise men according to the Kings bent unto whom the consideration of all the weighty affaires of the Kingdome is committed but nothing can be concluded without the Kings fiat which regularly should follow upon the premisses according to the major vote but more ordinarily suteth with that which best suteth with his pleasure And now are Parliaments looked on as fatall or at the best but as heavy dull debates and inconvenient both for speed and secrecy which indeed are advantages for weake and unwarrantable counsels but such as are well grounded upon truth and strength of reason of State care not to behold the clearest noon-day and prevaile neither by speed nor secrecy but by the power of uncontrolled Reason fetcht from truth it selfe The grand Councell of Lords also are now no lesse burthensome For though they were not able to prevaile against the private designes of an arbitrary Supremacy yet doe they hinder the progresse tell tailes to the people and blot the names of those that are of that aspiring humour which once done like that of Sisiphus they have no other end of there labour then their toile Thus perished that ancient and rightly honourable Grand Councell of Lords having first layd aside the publique then lost unity and lastly themselves besides the extreame danger of the whole body For the sence of State once contracted into a Privy councell is soon recontracted into a Cabinet councell and last of all into a Favourite or two which many times brings dammage to the Publique and both themselves and Kings into extream praecipices partly for want of maturity but principally through the providence of God over-ruling irregular courses to the hurt of such as walke in them Nor were the Clergy idle in this bustle of affaires although not very well imployed for it is not to be imagined but that these private prizes plaied between the Lords Commons and King laid each other open to the ayme of a forraine pretention whiles they lay at their close guard one against another and this made an Ecclesiasticall power to grow upon the Civil like the Ivy upon the Oake from being servants to friends and thence Lords of Lords and Kings of Kings By the first puting forth it might seem to be a Spirituall Kingdome but in the blosome which now is come to some lustre its evident to be nothing but a temporall Monarchy over the consciences of men and so like Cuckows laying their egges in nests that are none of their own they have their brood brought up at the publique charge Neverthelesse this their Monarchy was as yet beyond their reach it was Prelacy that they laboured for pretending to the Popes use but in order to themselves The cripple espied their halting and made them soon tread after his pace he is content thty should be Prelates without measure within their severall Diocesses and Provinces so as he may be the sole Praelatissimo beyond all comparison and undoubtedly thus had been before these times destroyed the very principles of the Church-government of this Kingdome but that two things preiudiced the worke the one that the papalty was a forraine power and the other that as yet the Pope was entangled with the power of Councels if he did not stoop thereunto The first of these two was the most deadly Herbe in the Pottage and made it so unsavoury that it could never be digested in this Kingdome For Kings looking upon this as an intrenchment upon their prerogative and the people also as an intrenchment upon their liberties both or one of them were ever upon the guard to keep out that which was without and would be ruled neither by Law nor Councell And thetefore though both Kings and people yeelded much unto the importunity of these men and gave them many priviledges whereby they became great yet was their greatnesse dependant upon the law of the Land and vote of Parliament and though they had the more power they neverthelesse were not one jot the more absolute but still the law kept above their top I deny not but they in their practice exceeded the rule often and lifted themselves above their ranke yet it is as well to be granted that they could never make law to bind the Church-men much lesse the Laity but by conjunction of the grand councels both for Church and Common-wealth affaires nor could they execute any Law in case that concerned the liberty or propriety of either but in a Synodicall way or as deputed by the Parliament in that manner And therefore I must conclude that in these times whereof we treat the principles of Church-government so farre as warranted by law were in their nature Presbyteriall that is both in making laws and executing them Bishops and Archbishops were never trusted with the sole administration of them but in and by consent of Synods in which the Clergy and Laity ought to have their joynt vote and all power more or contrary hereto was at the best an usurpation coloured by practise which was easily attained where there was a perpetuall moderatorship resting in the Bishop and over all the Pope the King Lords and Commons in the mean while being buried in pursuit of severall interests elsewhere To make all semblable the free men met with the sad influence of these distempers as wel from the King and Lords as the Clergy Kings to save their own stake from the Pope remitted of that protection which they owed to their Subjects and let in upon them a flood of oppressions and extortions from the Romish and English Clergy and
so like a little ship cast out a barrell for the Whale to peruse till it gets away but this changed no right The Lords by their partees shattered them a sunder and dismembered their body by intestine broiles The Clergy more craftily making some of them free Denisins of the Roman See and taking them into their protection whiles others of the free men at a distance were exposed as a prey to the continuall assaults of those devouring times all these conspired together to deface and destroy that ancient and goodly bond of brotherhood the Law of Decenners by which the free men formerly holden together like Cement in a strong wall are now left like a heape of loose stones or so many single men scarcely escaping with their skinne of liberties and those invaded by many projects and shifts in government of State affaires So must I leave them untill some happy hand shall worke their repaire both for time and manner as it shall please that great and wise Master builder of the World FINIS The Table ABbats page 229 Abbeys quarter p. 242 Not taxed or visited from forraine parts p. 244 Vacancies ibid. Purveyance ibid. Aberemurder amongst the Saxons p. 99 Accolites amongst the Saxons p. 28 Accusation witnesses amongst the Saxons p. 150 Action amongst the Saxons p. 87 Acquittaile vide Knightservice Administration vide Intestate Adultery amongst the Saxons p. 42 amongst the Normans p. 141 after p. 234 Advousions cognisance p. 178 Aedeling p. 53 Age vide Infancy Aides after the Norman times 201 278 285 Alderman p 53 Alienations licence p. 183 274 Allegiance according to the Saxons p 86 The Normans p. 151 Amercements p. 250 262 Apostacy punished by the Saxons p. 39 after p. 194 Appeales amongst the Saxons p. 86 the Normans p. 151 after p. 274 Appeales to Rome p. 176 setled p. 179 to Ecclesiastical Courts p. 179 Archbishops vide Metropolitans Arraies p. 305 c. Armes assessement p 206 vide Arraies Austin the Monke his comming and his actions p. 17 c. B. BAile 195 c. 269 c. 290 Bankes vide Bridges Baron vide Court Bargaine and saile of goods amongst the Saxons p. 107 the Normans p. 143 Barons warres p. 221 c Bastardy amongst the Saxons p. 42 Battaile triall amongst the Saxons p. 90 Batteries punished by the Sax ns p. 100 193 Bigamists p. 247 Bishops amongst the Saxons p. 25 vide Prelacy amongst the Normans their power increased p. 123 c. vide elections their oath to the Pope p 184 Basphemy punished by the Saxons p. 39 98 amongst the Normans p. 138 Bloodshed vide Manslaughter Bridges p 263 Britons their Religion and government 1 c. 18 conversion p. 3 instructed in learning p. 6 a Province ibid. the last that submitted to the papalty and the first that shook it off p. 20 Burgage amongst the Saxons p. 82 Burghbote ibid. Burglary punished by the Saxons p. 101 Burning of woods punished by the Saxons p. 101 vide p. 195 Burroughs Mag. cart Burroughs English p. 106 C. CAnnon-law p. 121 vide Prelacy Carriages p. 266 267 Castles their use p. 117 265 c. abuse p. 166 occasion of the first civill wars p. 209 Castle guard vide Mag. cart p. 267 de Cautione admittenda p. 182 Chancery p. 285 Chancemedly p. 287 Church maintainance by the Saxons p. 29 c. Franchise p. 71 Alienation p. 183 Reparation p. 235 Church-men Action p. 230 231 discharged from Torns p. 230 purveyance p. 23 267 Their complaints p. 227 236 Priviledged from distresse p. 242 Ciricksceate amongst the Saxons p. 30 Normans p. 139 Vide first fruits Circuits p. 192 Citation p. 182 242 Clerks triall p. 185 231 243 Killers of Clerks p. 185 Comites ex plebe p. 55 Common pleas setled p. 260 Commutation vide Arriculi Cleri Compurgators amongst the Saxons p. 89 Confession sacred p. 242 Constitutions at Clarindon p. 178 de Consimili casu p. 285 Conveyance vide Deeds Copy hold vide Mannor Coroners amongst the Saxons p. 66 286 Corporations p. 77 c. 125 Coverfew p. 163 Councels generall vide Synods Councels of Lords amongst the Saxons p. 54 vide Lords Counties Courts amongst the Saxons p. 65 Normans p. 131 After p. 275 276 285 Court Baron amongst the Saxons p. 78 Crown pleas Mag. cart p. 264 Curtesie of England in the Saxons time p. 105 Custodes pagani amongst the Saxons p. 55 D. DAneguelt p. 164 Released p. 189 Darrain presentment Mag. Cart. p. 262 Deacons p. 28 Deaneries amongst the Saxons p. 36 Debt to the King satisfaction p. 257 Debt to the King Mag. cart Decenners amongst the Saxons p. 70 Normans p. 134 Deeds among the Saxons p. 107 Defamation p 235 240 Departure beyond Sea without licence p. 180 Diocesses amongst the Saxons p. 36 Distresse in the Normans time p. 142 Mag. carta 258 c. vide County court Disseisin vide Redisseisin Noveldisseisin Dower in the Saxon time p. 103 Norman times p. 146 256 E ECclesiasticall cognisance and powmer p. 176 c. 129 204 Vide Stat. Circumspecte agatis Articuli cleri Ederbrece amongst the Saxons p. 101 Edw. the first p 214 Edw. the second p. 218 Elections p. 121 180 232 243 Elegit amongst the Saxons p. 95 Englishire a Saxon Law p. 100 Errour vide Appeales Escheates p 268 Vide Forfaiture Felony Escuage Mag. Carta p. 276 c. Excommunication in the Saxons time p. 95 Normans p. 128 After the Normans time 181 Excommunicato deliberando p. 241 Excommunicato capiendo p. 242 291 Execution in the Saxon time p. 94 Executors Mag. carta Exorsists p. 28 F. FAires in the Norman time p. 143 Fauxonry p. 192 195 Feastdaies Norman law p. 139 Felonies and Felons punishment and forfaiture p. 151 195 267 Concelement p. 289 Defamed ibid. Feorme or Farme amongst the Saxons p. 75 Fightwit amongst the Saxons p. 100 Fine by the Normans p. 150 280 c. Folkmote Vide County court Fooles and ideots amongst the Normans p. 149 After p. 280 Forraine councels p. 209 212 219 Fornication vide Adultery Forrests amongst the Saxons p. 82 Franchises p. 68 Frankpledge amongst the Saxons p. 78 Vide view Freemen of the Saxons p. 55 Normans p. 135 After p. 188 272 Frithbrech amongst the Saxons p. 100 Fugam fecit p. 85 Fugitives p. 268 G GAvellkind amongst the Saxons p. 106 Normans p. 160 Glebe amongst the Saxon p. 32 Goods found Saxon Law p. 109 Norman p. 143 Sale ibid. Grithbrech vide Frithbrech H HAbendum Saxon p. 107 Hamsockne Saxon p. 101 Heresie punished by the Saxons p. 39 Normans p. 138 After p. 193 Haubergettum Haubertum Halbargellum what it is p. 309 Heretock Saxon p. 53 Henry the first p. 119 Henry the second p. 167 Henry the third p. 207 c. Shifts for money p. 210 Forraine councels p. 212 Yeelds up his interest in the militia to the Lords ibid. c. Heordpeny vide Peterpence Highwaies priviledge p. 305 Hundred and the Court
Saxon p. 68 Norman p. 133 Hundred Setena Saxon p. 68 I IDolatry punished by the Saxons p. 97 Normans p. 138 Vide Blasphemy Imprisonment Saxon p. 100 Norman p. 151 Incest punished by the Saxons p. 101 Indictment Saxon law p. 85 Infancy amongst the Saxons p. 88 After p. 198 Infangtheoff Saxon p. 74 Inheritance Saxons p. 102 Normans p. 160 After p. 196 c. Inquest Saxon p. 91 Interdict in the Saxon time p. 38 After p. 182 Intent punished by the Normans p. 151 Intestate Saxon law p. 109 Norman p. 143 Afterward 232 c. 264 c. John p. 170 Judgement vide execution Judges vide Justice Judicatory 189 c. Jury grand petit amongst the Saxons p. 91 Justice and their Courts amongst the Saxons p. 84 Chiefe Justice p. 191 Judges or Justices itinerant after the Normans p. 192 199 284 K KIngs amongst the Saxons election continuance covenant maintenance power in Church-matters p. 46 c. 56 Amongst the Normans election 113 c. Covenant 116. c. Power in Church matters p. p. 123 c. In the times of Steven Henry the second Richard the first and John Election p. 165 Power in Church matters p. 176 c. In the times of Henry the third Edward the first and Edward the second Succession p. 208 c. Power in Ecclesiasticall matters p. 225 c. 233 In Civill affaires 277 c. 317 c. Knightservice amongst the Saxons p. 76 Marriage p. 146 202 255 Acquittall p. 149 Widdows p. 256 L LAnguage endeavoured to be changed by the Normans p. 161 Lashlight amongst the Saxons p. 99 Lecturers amongst the Saxons p. 28 Leet amongst the Saxons p. 78 Legierwit amongst the Saxons p. 100 Livery and seisin amongst the Saxons p. 108 London p. 257 Lords-day maintained by the Saxons p. 98 By the Normans as plea of the Crown p. 139 Lords their councels amongst the Saxons p. 62 84 From the Conquerours time till Henry the third p. 174 Lorica what it is p. 309 Lucius p. 9 c. Luminaries amongst the Saxons p. 31 Lunacy vide fooles M MAgna carta p. 172 Renewed with the curse p. 210 Stat. c. p. 253 Cap. 35. p. 244 Cap. 37. p. 245 Mainpernours by the Saxons p. 85 87 By the Normans p. 151 Maimes punished by the Saxons p. 100 Manbota amongst the Saxons p. 99 Mannors amongst the Saxons p. 75 Normans p. 134 Manslaughter punished by the Saxons p. 99 Normans p. 140 After p. 195 Manumission p. 137 Marriage portion vide Dower Marriage vide Knightservice Marchants Magna carta p. 272 Marches amongst the Saxons p. 72 Normans p. 131 Markets amongst the Saxons p. 80 Normans p. 143 Vide Townships Marshals Court p. 285 Matrimoniall causes amongst the Saxons p. 41 Medietas linguae amongst the Saxons p. 92 Metropolitan amongst the Saxons p. 23 Micklemote amongst the Saxons p. 57 The Primacy of Canterbury setled there p. 36 Mils tithed p. 240 Militia amongst the Saxons p. 63 The Normans p. 152 During the Kings next ensuing p. 205 During Henry 3. Edward 1. Edward 2 p. 294 Mint amongst the Saxons Normans p. 137 Monastry admission p. 183 Mortdancester p. 198 261 Mortmaine p. 245 Mortuary amongst the Saxons p. 32 N NEwes scandalous p. 292 Nightwatches by the Normans p. 141 After p. 304 Nobility amongst the Saxons p. 53 From the Normans time p. 172 From King Johns time p. 221 Normans their title c. p. 113 c. Not conquest p. 155 Novell disseisin p. 199 261 O OBlations cognisance p. 235 Odio Atia p. 269 c. Officers power greater then kings p. 173 Ordeale amongst the Saxons p. 89 Ordinaries intestate p. 232 Outfangtheoff amongst the Saxons p. 74 Ostiaries amongst the Saxons p. 28 Othes p. 246 271 P PAlatine county amongst the Saxons p. 73 Parishes amongst the Saxons p. 35 Parliaments p. 120 278 Parks trespasses p. 292 Passage p. 272 Peace amongst the Saxons p. 100 The Normans p. 140 After p. 300 Penall Laws Saxons p. 96 Normans p. 138 After in the time of Henry 2. p. 193 After p. 286 Perjury punished by the Saxons p. 40 101 Peeres amongst the Saxons p. 93 Peterpence amongst the Saxons p. 32 The Normans p. 139 Pledges p. 150 Plough almes Saxons p. 32 Popes power p. 19 177 184 Oppressions of the Clergie p. 225 Prelacy in England not till Constantines time 11. came from Rome by Austin p. 21 c. Suddenly grown p. 44 Praecipe Mag. carta p. 268 Priors vide Abbats Presbyters amongst the Saxons p. 27 Presentment amongst the Saxons p. 86 Priority vide Tenure Prohibitions p. 228 233 Protectour p. 209 Provinces amongst the Saxons p. 35 Purveyance p. 244 265 c. Q QUare Clausum fregit Saxon p. 101 Quare excommunicavit p. 227 Quare non admisit ibid. Quarentine p. 256 282 Quo warranto p. 244 R RAnsome p. 94 260 Rape Norman p. 141 After p. 195 c. 288 Reasonable part 257 264 Vide Dower Redemption vide Ransome Redesseisin p. 292 Reliefe Norman p. 145 After p. 201 Religious houses vide Abbeys Replevy Norman p 142 259 Richard the first p. 169 Romans entry p. 5 The Papalty with seven degrees of their Church Officers p. 29 Seven sorts of Church maintenance p. 35 Romescot Romesfeogh vide Heardpenny Robbery punished by Saxons p. 101 By Normans p. 142 After p. 193 195 287 304 S SAbbath day Saxon law p. 98 Sacriledge Saxon law p. 41 Sanctuary p. 139 183 242 Saxons in England mingled p. 90 Seale vide Deeds p. 107 Sheriffs Saxon p. 65 Extortion p. 275 286 Symony punished by the Saxons p. 41 Sorcery vide Witchery Soulshot Saxon p 32 Socage Saxon p. 77 Steven his government p. 165 Stat. Magna carta vide Magna carta Merton cap. 1 2 6 7 p. 156 Cap. 1. p. 282 Cap. 3. p. 292 Cap. 9. p. 252 Cap. 10. p. 275 Cap. 11. p. 295 Marlbridge cap. 1 2 3. p. 259 Cap. 4. ibid. Cap. 5. p. 280 Cap. 8. p. 292 Cap. 9. p. 264 Cap. 10. p. 229 275 Cap. 15. p. 259 Cap. 16. p. 254 Cap. 17. p. 282 Cap. 19. p. 262 Cap. 20. p. 261 Cap. 21. p. 259 Cap. 22. p. 260 Cap. 25. p. 287 302 Cap. 29. p. 229 Westm 1. cap. 1 2 5. p. 231 c. Cap. 3. p. 289 302 Cap. 4. p. 281 Cap. 6. p. 263 Cap. 9. p. 289 Cap. 10. p. 286 Cap. 11. p. 270 Cap. 12. p. 289 Cap. 13. p 288 Cap. 14. p. 275 Cap. 15. p. 290 Cap. 16. p. 260 Cap. 20. p. 292 Cap. 22. p. 256 Cap. 23. p. 286 Cap. 32. p. 266 Cap. 33. p. 275 Cap. 34. p. 292 Cap. 36. p. 285 Cap. 51 p. 261 Bigami p. 247 c. Glocest cap. 1. p. 262 Cap. 5. p. 255 Cap. 6. p. 261 Cap. 8. p. 285 302 Cap. 9. p. 270 De Religiosis p. 245 Westm 2. cap. 13. p. 275 Cap. 16. p. 256 Cap. 19. p. 232 Cap. 24. p. 285 Cap. 26. p. 292 Cap. 29. p. 270 285 Cap. 30. p. 262 Cap. 33. p. 245 Cap. 34. p. 288 Winton p. 302 c. Circumspecte agatis p. 233 c. Quia emptores p. 274 De Judaismo p. 273 Quo warranto p. 244 De vasto p. 255 De consultatione habenda p. 238 De wardis p. 254 Artic. super Cart. cap. 2. p. 266 Cap 3. p. 285 Cap. 9. p. 286 Cap. 12. p. 260 Cap. 13 14. p. 276 Cap. 15. p. 285 Cap. 18. p. 255 Conjunct feoffat p. 262 Amortizand terris p. 246 Asportat bonis Relig. p. 244 De militibus p. 294 Artic. cleri p. 219 238 Vicecomit p. 219 276 286 De priscis bonis cleri p. 219 244 Prerog reg p. 220 Cap. 3 13. p. 254 Cap. 7. p. 274 Cap. 9. p. 280 Cap. 11. p. 281 Cap. 14 16. p. 268 Subdeacons p. 28 Suite of Court p. 202 Vide Mannor Synods Briton p. 11 Saxon p. 37 Disadvantageous to Prelacy p. 45 Norman p. 127 Without the Laity p. 187 Power p. 248 c. T TAile Saxon law p. 105 Taxes p. 278 Vide Free men Tenures vide Mannor Normans changed them not p. 161 Tenures by severall Lords priority p. 200 By Escheats p 273 Terme Saxon p. 110 Testament Saxon p. 108 After p. 202 c. Thefts cognisance p. 193 195 Tithes originall p. 30 Cognisance p. 43 Normans p. 139 778 238 240 Torne Saxon p. 67 275 Torture amongst the Saxons p. 88 Townships and their Courts Saxon p. 81 Normans p. 134 Treason punished by Saxons p. 98 After p. 194 Trover of goods p. 143 Trotheplight p. 179 V VAcancies of Churches p. 179 c. 185 Vacation vide Terme View of piedges Saxon p. 78 Norman p. 134 After p. 263 275 Villains Saxon p. 56 Normans p. 137 Violence done to Clerks p. 235 Use in deeds of conveyance Saxon p. 107 Usury p. 273 W WArdship p. 148 202 254 270 Warranty Saxon p. 107 Weares p. 268 Wera wergilda Saxon p. 99 Weights and measures Saxons p. 28 Normans p. 142 269 Widdows vide Socage and Knightservice William the first p. 113 c. William Rufus p. 118 Wife Saxon p. 98 Will vide Testament Witnesses deeds Saxon p. 108 Witchery p. 40 Punished by Saxons p. 97 Wita Saxon p. 99 Worship Saxon cognisance p. 39 Wrecks p. 281 FINIS