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
afterward it was punished by fine and imprisonment by a law made by Alfred as he provided in like manner for other Church lawes The times anciently were not so zealous for due observance of Divine worship False worship unlesse by the Churchmen who were the leaders therein Canon Apost cap. 10. a forraine Canon was made to enforce that duty long before but it would not down with the rude Saxons they or the greater sort of them were content to come to Church onely to pray and heare the word and so went away this is noted by that ancient writer in nature of an imputation Bed hist lib. 3. cap. 26. as if somewhat else was to be done which they neglected this somewhat was the masse which in those daies was wont to be acted after the Sermon ended Mag. Cent. 7. cap. 6. and its probable that if the Nobles were so ill trained up the inferiour sort was worse and yet finde we no law to constraine their diligence or to speake more plainly it s very likely the Saxons were so resolute in their worship as there was either little need of Law to retaine them Concil Brit. p. 306. or little use of Law to reclaime them for it s observed in their late Psalter that the Roman Clergy was not more forward to Image or Saint-worship then the people were backward thereto and therein shewed themselves the true seed of their ancestors in Germany of whom it s observed that they indured not Images Tacit. Mor. Germ. but worshipped a Deity which they saw sola reverentia Sorcery and Witchcraft they had in abomination yet it was a sinne alwaies in a myst and hard to be discerned but by the quicksighted Clergy and therefore it was left to their censure Concil Brit. 246. An. 745. as a sinne against the worship of God This Ethebald the Mercian King first endowed them with and they alone exercised the cognisance thereof till Alfreds time who inflicted thereupon the penalty of banishment Ibid. 377. but if any were killed by inchantment the delinquent suffered death by a Law made by Aethelstan Ibid. 403. An. 928. And thus by degrees became one and the same crime punishable in severall jurisdictions in severall respects Concerning perjury Perjury the Prelates had much to doe therewith in future times and they had the first hint from Ina the Saxon Kings grant to them of power to take testimonies upon oath Ll. Sax. fo 4. as supposing that the reverence that men might beare to their persons and functions would the rather over-aw their tongues in witnessing that they would not dare to falsifie least these knowing men should espie it and forthwith give them their doome But no positive Law allowed them that power of sentence till Aethelstans law gave it An. 928. and upon conviction by the same Law distested the delinquents oath for ever Sacriledge Sacriledge comes in the next place being a particular crime meerly of the Clergy mens exemption and naming for before they baptised it you might have well enough called it theft oppression or extortion This crime the Prelates held under their cognisance by vertue of that generall maxime Concil Brit. p. 127. An. 610. Ibid. 265. that all wrong done to the Church must be judged by the Church The first time that I can observe they challenged this power was by Egbert Archbishop of Yorke in the seventh Century But nothing was more their own then Simony Simony and that may be the reason why we finde so little thereof either for the discovery or correcting thereof All former crimes were in their first act destructive to the Church but this advantagious Concil Brit. 263. and therefore though the Canons roare loud yet the execution is not mortall because it s bent against the dignity and not the gaine and although the Canon would not that any Presbyter should be made but presented therewith to some place to exercise his function in yet it serveth not for those times when men were sent forth rather to make flocks then to feed flocks And yet the theame of marriage was the best dish in all their entertainment Matrimonial causes they had the whole common place thereof with the appurtenances within the compasse of their text before ever it attained the honour of a Sacrament It was a branch of Moses Law whereof they were the sole expositours and so seemeth to be cast upon them by a kind of necessity as an orphan that had no owner Neverthelesse a passage in Eusebius seemeth to repose this trust in the civill Magistrate for he relateth out of Justin Martyr concerning a divorce sued out by a godly Matron long before the Prelacy got into the saddle or the Clergy had the power of Judicature And whereas Lucius taxed Vrbicius the Magistrate for punishing Ptolomy who was guilty of no crime worthy of his cognisance in that kind amongst other crimes enumerated by him whereof Ptolomy was not guilty he nameth the crimes against the seventh Commandement intimating thereby a power in the Judge to have cognisance of those crimes as well as others But the Prelacy beginning to mount nibled at it in the second Century but more clearly in the fourth when the persecutions were allayed and men of learning began to feele their honour and never left pursuit till they had swallowed the baite and exercised not onely a judiciary power in determining all doubts and controversies concerning the same but challenged an efficienciary power in the marriage-making This garland Austin brought over with him and crowned the Saxon Clergy therewith Beda hist l. 1. cap. 27. as may appeare by his Queres to Pope Gregory and thus the Saxons that formerly wedded themselves became hereafter wedded by the Clergy yet the civill Magistrate retained a supreame legislative power concerning it as the joynt marriages between the Saxons Britons and Picts doe manifest for it s said of that work that it was effected per commune concilium assensum omnium Episcoporum procerum comitum omnium sapientum seniorum populorum totius regni per praeceptum Regis Inae and in the time of Edmond their King were enacted Laws or rules concerning marriage Concil Brit. 219. Concil Brit. p. 427. An. 944. and so unto the Lay power was the Ecclesiasticall adjoyned in this work The Clergy having gained the principall with more ease obtained the appurtenances such as are Bastardy Adultery Fornication and Incest There was some doubt concerning Bastardy Bastardy because it trenched farre into the title of inheritance and so they attained that sub modo as afterward will appeare The Lawes of Alfred and Edward the elder allowed them the cogisance of Incest Incest Concil Brit. p. 392. An. 905. although neverthelesse the civill Magistrate retained also the cognisance thereof so far as concerned the penalty of the temporall Law Adultery and Fornication they held without controle yet
accesse of power not to make dispence with or alter Laws but to execute and act the Laws established and against this power there was no rising up so long as it like an unfethered Arrow gadded not at random It s true the Church men or Prelates checked them often but could never give them the mate For peace sake Kings many times yeelded much yet would no King of Saxon principles allow of any Canon that extolled the Clergies authority above that of Kings and though the placing and displacing of Bishops seemed to be all Ecclesiasticall worke yet would not the Kings altogether connive as the examples of Ina in placing a Bishop in Wels Offa in making two Provinces of one Malmesb. gest pontif lib. 3. gest Reg. lib. 1. cap 4. M. Paris An. 1095 Cenulphus in restoring Polydorus Edfrid in deposing Wilfrid and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion and for their own safety sake the Prelats thought it wisdome for them sometimes to stoop to that power that at other times they must be beholding to and therefore though in Synodicall disputes they would hold with the Canon yet in matters of action would suite with the occasion and thereby taught Princes to account of Canons but as Notions and politiquely to put the honour of Commissioners upon these men thus the current of both powers passing in one chanell made the people drinke double Beere at once the turns both of Pope and King were competently served and these men had the honour of the two-handed Sword and all seemed composed into a faire compromise But the Popedome finding its authority becalmed indured this but as a burden till Pope Nicolas the seconds time who by the like trick commended all to the Crown as from the Papall benediction For Edward the Confessor upon his foundation of the Abby of Westminster sent to the Pope for his allowance and confirmation of what he had done or was to doe and to make way for the more favour sent presents and a confirmation of Romescot The Pope was so inflamed with such an abundant measure of blessing as he not onely granted the Kings desire but also discharged that Abbey from ordinary jurisdiction made it a peculiar subject onely to the Kings visitation and concluded his Bull with this horne Vobis vero posteris vestris regibus committimus advocationem tuitionem ejusdem loci omnium totius Angliae Ecclesiarum Concil Brit. p 634. An. 1066. vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I finde not but he could never make better use then by way of estoppel unlesse he meaned to sacrifice his own right as a thankoffering to a shadow which I finde not that he or his next successors ever did but as touching the Laity Histories doe not touch upon any conceit of withdrawing Monarchicall power It s true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter Ll. Canut cap. 67. or by the Princes faire complyance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude that a Saxon King was no other then a primum mobile set in a regular motion by Lawes established by the whole body of the Kingdom CHAP. XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in war and in peace That ranke of men was continued by three means viz. by birth or blood by valour and by wisdome the first was rather at the first a stemme arising out of the first two then a different degree or kind for Noble blood was at the first innobled by brave actions afterward continued in their honour to their posterity till by as base courses it was lost as it was gained by worthy atchievements these were called Adelingi The nobility of action consisted either in matters of war or of peace Those of peace arose principally from wisdome which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of war arose somewhat from valour or courage with wisdome but more from good successe for many brave and fortunate Commanders have not been very daring Ll. Edw. cap. 35. Nitard lib. 4. and the bravest spirits though wise have not been ever honoured with good successe these were called Heretochii Neverthelesse all these names or titles were used promiscuously in following times and all called Nobiles but both that and Duces Satrapae and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this Honourable band viz. The great Officers of the Kings houshold and their attests are found amongst the Kings charters amongst the Nobles And that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but master of some may by a little curtesie prevaile over all This starry Heaven had severall Orbes Tacitus some so high as in common esteem they were next the Imperiall Heaven having a tincture of Royall blood and at the next door to the Throne Others though not of so clear light had neverthelesse no lesse powerfull influence upon the people but rather more by how much more nigher to them Their power in matters of peace or government of the Common-weale was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publique in convocating and directing the people De minoribus rebus consultant principes Tacitus These minora are such as are subservient to the majora and pro hic nunc require sudden order touching any particular part or member of the Common-wealth At other times they visited their severall Territories or circuits hearing and determining matters of controversie and executing judgement according to the known Lawes Principes jura per pagos vicosque reddunt Yet they had comites of the Countrey joyned with them Tacitus whereof afterward This was their course in German Saxony but in England the new stemme of Kingly power arising higher then all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regall order and the Lords executed the same as deputies from and under him designed thereto by Writs and Commissions as its more particularly noted of King Alfred Miror cap. 5. Sec. 1. The Lords thus lessened in their judiciary power carried the lesse authority in their votes and consultations The King was a perpetuall moderator in that worke and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it s a hard thing for one that hath yeelded his heart to admiration to keep it from
15. nor out of the County without allowance of the Sheriffe or other Governour of the same And if any controversie arose between the pledges the chiefe pledge by them chosen called also the Deane or Headburrough may determine the same Ll. Edw. c 20. but this held onely in matters of lighter consequence CHAP. XXVII Of Francheses and first of the Church Franches WE have hitherto trode in the rode way of the government of the Common-weale but private regards have made by-paths which we must trace or else the footsteps in many particulars will remaine unknown These are called exemptions but more ordinarily Francheses from which scarce any part of the Kingdome remained free and are to be considered eithet in regard of the place or person In the later I intend that of the Churchmen whose persons and estates in many particulers were exempted from the civill power of this Kingdom Their persons devoted to a peculiar worke they would have to be under a peculiar Law called the Canon law which at the first extended onely to their own persons and that onely pro reformatione morum Concil Brit. p. 258. for so an Archbishop tels us that it did teach quomodo Canonici id est regulares Clerici vivere debent but when it grew to its full charge it gave a louder report Quicunque aliquid tenuerit vel in fundo Ecclesiae mansionem habuerit extra curiam Ecclesiasticam non placitabit quamvis foris fecerit Ll. Edw. Conf. And thus as Church ground increased by the blind charity of those times so long Churchmen multiplied and the Canon inlarged from the persons of regulers to all Clergymen and from them to their Tenants and neighbours from thence to certain Spirituall or Ecclesiasticall crimes or scandals wherever they were found and wherever it touched it tooke and bound by Excommunication Ll. Edw. cap. 7. and upon significavit being first delivered to Satan they delivered him over to the sentence of the Law to be imprisoned If the offender be out of reach by the space of thirty and one daies he is outlawed so as there 's no way left to escape the Church fury CHAP. XXVIII Of the second Franches called the Marches FRanchises of the place were such as were limited within precincts of place annexed thereto and of this sort first were those of the borders of which those are the most ancient that bordered the Britons now called the marches of Wales in which was a peculiar government so far as concerned administration of justice for otherwise the subjects each of them submitted themselves to the service of their own Prince This was therefore a third different and mixt government agreed upon joyntly between the Britons and Saxons who after a long and burdensome warre wherein both peoples were well wearied by degrees became friends entered traffique and into the strictest societies by marriage Thus finding the sweetnesse of peace they provide against future occasions of strife that might arise in commerce by the justling of two Laws together agree in one law upon a certain number of Judges elected by common consent who were to see to the execution of these Laws as joynt assessors From these as I conceive arose those which are now called the Lords marchers Ll. Aetheld cap. 3. and were at the first twelve in number viz. six Saxons and six Britons It seemeth this form of government was first instituted by Aetheldred and by way of prescription or custome continueth till this day and as it was the birth of truce so for the future became both mother and nurse of peace between those two peoples like the twilight between the day and night untill both were brought under one head and by divine providence setled in a lasting day CHAP. XXIX Of County Palatines OF the same sort of Francheses were these which are called County Palatines which were certaine parcels of the Kingdome assigned to some particular person and their successors with royall power therein to execute all Laws established in nature of a Province holden of the Imperiall Crown and therefore the Kings Writ passed not within this precinct no more then in the Marches These were occasioned from the courage of the inhabitants that stoutly defended their liberties against the usurping power of those greater Kings that endeavoured to have the Dominion over the whose Heptarchy and not being easily overcome were admitted into composition of tributaries and therefore are found very ancient for Alfred put one of his Judges to death for passing sentence upon a malefactor for an offence done in a place where the Kings Writ passed not Miror cap. 5. Sec. 1. and the same authour reciting Another example of his justice against another of his Judges for putting one to death without president rendreth the Kings reason for that the King and his commissioners ought to determine such cases excepting those Lords in whose precinct the Kings Writ passeth not CHAP. XXX Of Francheses of the Person FRancheses of the person are such liberties annexed unto the person as are not absolute Lordships but onely tending thereto and limited within a Precinct but not annexed thereto and these are matters of profit rather then power as those of Bury St. Edmonds Doncaster Dorchester Circester all which were in the Saxon times Miror cap. 5. and these or some of them had juridicall power in cases of felonies and robberies arising within that precinct so as the delinquent was both inhabitant and taken within the same this was called Infangtheoff Infangtheoff and if upon fresh pursuit made by the right owner or possessor the delinquent was taken with the prey in his possession or as the old Dialect is Handhaben Backbearend Ll. Edw. cap. 26 Then was he carried immediately before the Coroner of that liberty and the Sakeber or party wronged made his proofe by witnesses and thereupon judgement forthwith passed without answer and execution immediately ensued Some Liberties had Outfangtheoff Outfangtheoff Bracton lib. 3. tract 2. cap. 35. Briton cap. 15. that is the triall and forfeiture of such delinquents being no inhabitants and yet taken within the liberty or inhabitants and not taken within the liberties but this triall was alwaies by Jury The antiquity of these Liberties are not obscurely manifested in their names and more clearly by the Saxon Laws and Acts Ll. Edw. cap. 21 for it s observed of Alfred that he seised a Franches of Infangtheoff because the Lord of that Franches would not send a felon taken within his liberty for a felony committed without the same to the gaole of the County Miror cap. 5. Sec. 1. as he ought to have done Other Liberties there were granted also by charter a taste whereof may be seen in one grant made by King Edgar to the Monastery of Glastenbury wherein was granted Sack Hamsockne Friderbrece Forstel Teme Flemone Ferdre Hundred Setene Sock Tholl Adae Horda Bufan Orderan Bene Orderan the
particular natures of each may be observed in the Glossaries All of them being allowed to the Crown by the Law and by the advice of the Councell of Lords granted over to these Grantees in nature of Deputies to the King to possesse both the power and profit thereto belonging CHAP. XXXI Of Manors NEverthelesse most of these liberties if not all of them were many times granted by Kings as appendent to Manors which were Francheses of smaller circuit being at the first portions of ground granted to some particular persons and by them subdivided and granted over to particular persons to hold of the Grantors by rents services and suit to one Court all being no other then the spoiles of warre and rewards of valour or other service These in their collective nature are called a Manor and by continuance of time become a kind of body politique In antiquity it s called Mansum from the mansion house although it is not of the Essence of a Manor Bracton fo 212 nor ought the words of Bracton to be construed according to the literall sence for the house may be destroyed and yet the Manor continue and the ground was granted in tenure before any house built thereupon The quantity of the ground thus given to hold by service was according to the pleasure of the Lord more or lesse and therefore might extend into divers Parishes as on the other part one Town might comprehend divers Manors Flera lib. 4. cap. 15. The Estate that was granted depended partly on the condition of the Grantee for some were servi or bondmen and their Estate was altogether at the will of the Lord as was also the benefit but the servants merit and the Lords benignity concurring with some conscience of Religion as the light grew more cleare abated the rigour of the tenure into that which we now call Copyhold Other Estates were made to the Free men which in the first times were onely for yeers albeit therein they were not niggardly for they sticked not at Leases for a hundred yeeres Ingulsus Croyl yet with a render of rent which in those daies was of Corn or other Victuall and thence the Leases so made were called Feormes or Farmes which word signifieth Victuals But times ensuing turned the victuall into money and terms of yeers to terms of life and inheritance retaining the rents and those called Quit rents or the rents of those persons that are acquitted or free Gloss 158. Ll. Saxon 16 17. Lamb. Gloss 348. Ll. Canut p. 1. cap. 69. But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a reliefe which were not left to the will of the Lord but was put in certainty in the very letter of the Law for according to each mans degree such was his reliefe or heriot But over and above all they reserved speciall service to be done by the person of the Tenant or some other by his procurement of which those that were their servi or villains were at the will of the Lord others had their particular service set down in their grants Knight-service These concerned either warre or peace the former was afterwards called the service of the Knight or Souldier the later the service of the Husbandman or Plough That of the Souldier was the more honourable and suitable to the old German trade Pigrum iners videtur sudore acquirere quod possis sanguine parare Tacitus and the worke was to defend the Kingdom the Lords person and honour and to this end he was ever to have his weapons in readinesse which gave name to the service and altered as times and customes changed This service by custome from a worke degenerated into the bare Title and became a dignity and the men named or rather entituled Milites and many of the Saxon charters were attested by men bearing that Title yet the service it selfe was farre more ancient and called servicium loricae of which sort also were the Custodes pagani that wore a Helmet a coat of Maile and a guilt Sword not unlike the old German way of calling forth of their Tirones to the war Tacitus Of this ranke some were more eminent then others for some bare the single title of Knight and it seemed served on foot Others served on horseback and were called Radknights or Knights riders as Bracton noteth Selden Spicil and these I take to be the Vavasours noted in the Conquerours Laws for that their reliefe is a Helmet a Cote of Maile a Shield a Speare and a horse Now for the maintaining of this service they had Lands and Tenements called Knights Fees which bound the owner to that service into whose hands soever they came to be done either by the person of the owner or other fit person by him procured and therefore were discharged from the payment of all taxes and tollage which was the Law of the Goths of old Co. Litlet 75. Bureus and remains in Sweden at this day The number of these Fees much increased so as in the Conquerours time they were above sixty thousand which was a mighty body for a small Island and brought much honour to the Nation But the profit arose from beneath Soccage tenure I mean from the soccage tenure or service of the Plough which in the first times was performed by those that were unfit for the service of the wars either being green and young or decrepet and aged Tacitus and sometimes by the women But after that the Saxon conquest was at a stop and that no more was to be gotten by blood men endeavoured to satisfie their desires by sweat and turned their Swords into Ploughshares and thus the Husbandry increased exceedingly and hath proved the best pillar of the Common-weale the nature of this tenure is fully set out by the Reporter Co. Litlet fo 86. Ll. Edw. c. 33. Spiceleg Ll. Edw. c. 33. nor can I adde thereto more then the Law of the Confessor concerning these men viz. that no man might trouble them but for their rent nor any Lord thrust them out of their Farme so long as they do their service and thus it appeareth that the service became in nature of a condition subsequent begetting an increaser of the Estate which by continuance wrought an inheritance and so the Title of Entry was turned wholly into distresses for service not performed yet the Lord was no looser thereby so long as Heriots Rents and Services accrewed unto him CHAP. XXXII Of Courts incident and united unto Manors BY grants made by Lords unto Tenants already noted the Lords had power by common right to call their Tenants before them and enquire concerning their payment of rents and performance of services which became Courts of constant appointment of which sort there were two one for the free men the other for the bond men and this brought forth an other service Court-leet
instrument of its own restraint for the great men ere they were aware hereby lost one of the fairest flowers of their Garland viz. the judicature or rather the mastership of the life or death of the meaner sort and thereby a faire opportunity of containing them for ever under their aw And no lesse remarkable was the benefit that redounded to this Nation hereby for had the great men holden this power as once they had it it might soon have endangered the liberty of the free men and thereby been destructive to the Fundamentall constitution of the government of this Realme which consisteth in the just and equall participation of these priviledges wherein all are equally concerned This was the triall wherein the people of this Nation were made happy above all other people and whereby the free men as they had the legislative power so likewise had the juridicall and thereby next under God an absolute dominion over themselves and their estates for though this course of triall was first applied to matters of crime yet it soon also seised upon the Common pleas which for the most part was the worke of main import in the Hundred Court and suitable hereunto are the prescriptions which are extant in the Law-books of cognisance of pleas and writs of Assize c. from the times of the Saxons as in that case of the Abbot of Bury amongst others doth appeare 26. aff pl. 24. CHAP. XXXIX Of passing of judgement and execution AFter verdict judgement passed according to the letter of the Law or known custome in criminall matters according to the greatnesse of the offence either for death or losse of member But if the circumstances favoured the delinquent he was admitted to redemption of life or member by fine also setled by Letter of the Law and not left to the Judges discretion If the crime reached onely to shamefull penance such as Pillory or whipping the last whereof was inflicted onely upon bondmen then might that penance be reduced to a ransome Ll. Inae Ll. Canut according to the graine of the offence assessed in the presence of the Judge by the free men and entered upon the roll and the estreat of each ransome severally and apart sent to the Sheriffe This ransome was paid usually unto the King and Lord and the party indammaged or his friends if the case so required Ll. Inae cap. 22. according to the old German rule Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus This course opened indeed a way for mercy Tacitus but through corruption a floodgate to wickednesse in the conclusion Of imprisonment there was little use in the eldest times afterwards it was more used not onely to secure the person to come to triall of Law for miscarriages past but sometimes to secure men against committing of future mischiefe especially if it more concerned the publique I finde but little or no use thereof barely as a punishment nor would their auncestors so punish their bondmen Vinculis coercere rarum est In case of debt or dammage the recovery thereof was in nature of elegit for the party wronged either had the offenders goods to him delivered or the value in money upon sale of the goods made by the Sheriffe and if that satisfied not Ll. Edw. then the moity of the lands was extended and so by moities so farre as was possible salvo centenemento and when all was gone the defendants armes which were accounted as the Nether-milstone or stock of maintenance were last of all seised Ll Alured c. 1. and then the party was accounted undone and cast upon the charity of his friends for his sustinance but the person of the man was never imprisoned as a pledge for the debt no not in the Kings case for Alfred imprisoned one of his Judges for imprisoning a man in that case One punishment of death they had in cases of crime Miror cap. 5. Sec. 1. and that was by hanging or strangling and where the crime was not so great sometimes ensued losse of member or mutilation and in many such cases Excommunication pronounced indeed by the Clergy but determined by the Law which in the first conception was framed in the wombe of the legislative power in Parliament Concil Brit. 105 251 365 420. as may appeare in many laws there made nor was there in those times any question made of the cognisance thereof so long as the Clergy and Laity had charity enough to joyn in all publique Councels CHAP. XL. Of the penall laws amongst the Saxons PAssing the Courts and manner of proceedings till sentence we are now come to the particular Laws that directed the sentence and first of those that concerned criminall offences During the Saxons time the Common-wealth was in its minority the government tender the Laws green and subject to bend according to the blast of time and occasion and according to the different dispositions of governours ages and peoples For though the Saxons were in name our first matter yet not they onely but they having once made the breach open and entered this Island it became a common sewer to the excrescency of those Easterne peoples of the Angles Danes Almains and Goths as their severall Lawes left with us in power doe not obscurely informe us and amongst all the rest the Goths were not the least concerned herein for the Saxon King determining what people shall be holden Denisins in this Kingdome saith that the Goths ought to be received and protected in this Kingdome as sworn brethren kinsmen and proper Citizens of this Common-weale Nor can any Nation upon earth shew so much of the ancient Gothique law as this Island hath Neverthelesse in this mixture of people of severall Nations there being a suitable mixture of Laws as the power of any one of these people 's changed so likewise did their Laws change in power and long it was ere a right temper of one uniforme law could be setled yet in the interim these short remembrances left unconsumed by time I have subjoyned that it may appeare their notions were excellent though somewhat inconstant in their practice Those times were darke and yet so farre as any light appeared the people were to be honoured for their resolution in the defence thereof For there was few of the Commandements of the two Tables which they did not assert by Laws by them made the third and tenth excepted which latter commands the inward man onely and whereof God hath the sole cognisance True it is that the first Commandement containeth much of the same nature yet somewhat is visible The first Commandement and that they bound for whereas in those times the Divell had such power as he did prevaile with some Witchery and those it may be not a few to renounce God and deliver themselves wholly to his owne will they punished this crime with banishment as unworthy of their society that
antiquity For Aethbald the Mercian King above eight hundred yeeres agoe gave the Monastry of Cutham Concil Brit. 319. with all the Lands thereto appertaining to Christchurch in Canterbury and for the confirmation thereof commanded a clod of earth with all the Writings to be laid upon the Altar Another Monument hereof more ancient by the space of above 100 yeers we finde in that grant of Withered King of Kent Concil Brit. 192. of foure plough lands in the Isle of Tenet the latter part whereof this clause concludes thus Ad cujus cumulum affirmationis cespitem hujus supradictae terrae super sanctum altare posui Last will But every man had not liberty to execute the law of his inheritance in his life time for some were surprised with sudden occasions and unexpected issues and ends and in such cases they did what they could to declare their intents by last will which by common intendment being in writing hath occasioned some to thinke that the Saxons in their originall had no use thereof being as they conceived so illiterate as not having the use of writing but the Character remaining to this day evinceth the contrary nor can those words of Tacitus nullum est testamentum in any rationall way be expounded in this sence if we consider the context which runneth thus Haeredes successores cuique liberi nullum est testamentum Which in my opinion sounds in this sence The heires and successors to every one are his children and there is no testamentary power to disherit or alter the course of descent which by custome or law is setled Otherwise to deny them the use of all testamentary power was a matter quite abhorring the custome of all the Grecians from whom they learned all that they had M Westm An. 817. Malmsb. gest Reg. l. 2. c. 2. Neverthelesse the Saxons had not been long acquainted with the Romanists but they had gotten that trick of theirs also of disheriting by last will as by the testament of Aethelwolfe and others of the like nature in Histories may appeare The conveyances formerly mentioned concerned Lands and goods but if no such disposall of goods were Goods the ancient German custome carried them after the death of the ancestor promiscuously or rather in common to all the children but in succeeding times the one halfe by the law of Edmond passed to the relict of the party deceased by force of contract rather then course of descent After him Edward the Confessor recollecting the Laws declared that in case any one died intestate the children should equally divide the goods which I take to be understood with a salvo of the wifes dower or portion As yet therefore the ordinaries had nothing to doe with administration for goods passed by descent as well as Lands and upon this custome the Writ de rationabili parte honorum was grounded at the common law as well for the children as the wifes part F.N. Br. 122. according as by the body of the Writ may appeare CHAP. XLII Of times of Law and vacancy SUch like as hath been shewed was the course of government in those darker times nor did the fundamentals alter either by the diversity and mixture of people of severall Nations in the first entrance nor from the Danes or Normans in their survenue not onely because in their originall they all breathed one ayre of the laws and government of Greece but also they were no other then common dictates of nature refined by wise men which challenge a kind of awe in the sence of the most barbarous I had almost forgot one circumstance which tended much to the honour of all the rest that is their speedy execution of justice for they admitted no delaies till upon experience they found that by staying a little longer they had done the sooner and this brought forth particular times of exemption Miror cap. 4. Sec. 16. as that of infancy and child-bearing in case of answer to criminail accusations But more especially in case of regard of holinesse of the time as that of the Lords day Saints daies Ll. Sax. cap. 10. Concil Brit. 518. Fasts Ember daies for even those daies were had in much honour Nor onely daies but seasons as from Advent to the Octaves of Epiphany from Septuagesima till fifteen daies after Easter or as by the Laws of the Confessor till eight daies after Easter and from Ascention to the eighth day after Pentecost and though as Kings and times did change so these seasons might be diversly cut out as the Laws of Alfred Aethelstan Aetheldred Edgar Canutus and Edward doe manifest yet all agreed in the season of the yeere and that some were more fit for holy observation then others And thus by the devotion of Princes and power of the Clergy the foure Terms of the yeere were cut out for course of law in the Kings Court the rest of the yeere being left vacant for the exercise and maintenance of Husbandry and particular callings and imployments saving that even in those times the Courts of the County and Hundred held their ancient and constant course Last of all and as a binding law unto all Miror cap. 4. Sec. 18. it was provided that false Judges should give satisfaction to the party wronged by them and as the case required to forfeit the residue to the King to be disabled for ever for place of judicature and their lives left to the Kings mercy CHAP. XLIII An Epilogue to the Saxon government ANd thus farre of the joynts of Saxon government in their persons precincts courts causes and laws wherein as the distance will permit and according to my capacity I have endeavoured to refresh the Image of the Saxon Common-weale the more curious lineaments being now disfigured by time afarre off it seems a Monarchy but in approach discovers more of a Democracy and if the temper of a body may appeare by the prevailing humour towards age that government did still appeare more prevalent in all assaults both of time and change The first great change it felt was from the Danes that stormed them and shewed therein much of the wrath both of God and man And yet it trenched not upon the fundamentall law of the peoples liberty The worst effect it had was upon the Church in the decay of the power of Religion and worship of God For after much toile and losse both of sweat and blood the Danes finding that little was to be gotten by blows but blows and that the Clergy at the least was the side-wind in the course of all affaires laid aside their Paganisme and joyned with the Clergy and as their converts and pupils gained not onely their quiet residence but the favour of the Clergy to make triall of the Throne and therein served the Clergy so well as they brought the people to a perfect Idolatry with times places and persons and subjection of their estates to Church tributes
him over For though he might seem as it were in the heat of the chase to be drawn to London where the Crown was and that he rather sought after his enemies then it yet as soon as he perceived the Crown in his power he disputed not the right although that was Edgars but possessed himselfe of the long desired prey and yet he did it in a mannerly way as if he saw in it somewhat more then Gold and precious stones for though he might have taken it by ravishment yet he chose the way of wooing by a kind of mutuall agreement Thus this mighty Conquerour suffered himselfe to be conquered and stooping under the law of a Saxon King he became a King by leave wisely foreseeing that a title gotten by election is more certaine then that which is gotten by power CHAP. XLV That the title of the Norman Kings to the English Crown was by election SOme there are that build their opinion upon passionate notes of angry writers and doe conclude that the Dukes way and title was wholy by conquest and thence inferre strange aphorismes of state destructive to the government of this Kingdome Let the Reader please to peruse the ensuing particulars and thence conclude as he shall see cause It will easily be granted that the title of conquest was never further then the Kings thoughts if it ever entered therein else wherefore did he pretend other titles to the world But because it may be thought that his wisdome would not suffer him to pretend what he intended and yet in practice intended not at what he did pretend it will be the skill of the Reader to consider the manner of the first William's Coronation and his succeeding government His Coronation questionlesse was the same with that of the Ancient Saxon Kings for he was crowned in the Abbey of Westminster by the Archbishop of Yorke because he of Canterbury was not Canonicall At his Coronation he made a solemne covenant to observe those Laws which were bonae approbatae antique leges Regni Hoveden Eadmer Hist l. 1. p. 13. M. Paris vit Gulielm Malmsb l. 3. fo 154. Wigorn. An. 1066. Glossar Ll. Gul. Spicil 190. to defend the Church and Church men to govern all the people justly to make and maintaine righteous Laws and to inhibit all spoile and unjust judgements The people also entred into Covenant with him That as well within the Land as without they would be faithfull to their Lord King William and in every place to keepe with all fidelity his Lands and Honours together with him and against enemies and strangers to defend It is the selfesame in substance with the fealty that the Saxons made to their Kings as will appeare by the paralelling them both together The Saxons were sworn 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 so as by the Saxon way the allegiance first terminated on the Kingdome and then as in order thereunto upon the King with his Lands and honours but the Norman either wholly omitted the first as needlesse to be inserted in a municipall Law it selfe being a Law in nature or else includeth all within the words Lands and Honours taking the same in a comprehensive sence for the whole Kindome and so made up the summe of the Saxon fealty in fewer figures Which may seem the more probable of the twaine because little reason can be rendred why the King should restraine that defence to his private lands if he claimed all by conquest when as all equally concerned him or why he should exclude the publique when as both himselfe and all he had was imbarked therein and it might subsist without him but contrarily not he without it appeareth not to my understanding nor did the thing enter into the Kings purpose if the file of his purposes be rightly considered For speaking concerning Castles Burroughs and Cities which are in nature of limmes of the Common-weale he saith that they were built for the defence of the people and Kingdome was this the service of walls and fortifications Ll. Gul. Spicil 61. and not much rather of men within those places of strength Certainly the plain English is that in time of breach of publique quiet and peace the subiects were bound to defend the Kingdome and in order thereto the people of the same and of the Kings right included in the publique defence else it were a strange conclusion that each man in particular and in their own person alone was bound to defend the Kings right but being imbodied the Kingdome And yet more clearly its apparent in that the service of the order of Knighthood which was the chiefe strength of the Nation in those daies was determined upon the service of the King M. Paris An. 1100 1213. and defence of the Kingdome or which is more plain for the service of the King in or for defence of the Kingdome as the statute of Mortmaine expounds the same Stat. 7. E. 1. But not to force the Kings sence by argument if the King had purposely omitted that clause of the Kingdomes safety as of inferiour regard to his own personall interest it was one of his rashest digressions wherein he soon espied his errour for in the middest of his strong and conquering army he held himselfe unassured unlesse he had a better foundation then that which must change with the lives of a few at the utmost And therefore besides the oath of fealty formerly mentioned he established a law of association that all free men should be sworn brethren Ll. Gulielm Spicil 59. 1. To defend the Kingdom with their lives and fortunes against all enemies to the utmost of their power 2. To keepe the peace and dignities of the Crown 3. To maintaine right and justice by all means without deceipt and delay Joyn then these two oathes together viz. that of fealty and this of fraternity and it will easily appeare that the allegiance of the English to the Norman Kings was no other then what might stand with brotherhood and tender regard of the publique above all and differing from the Saxon fealty onely in this that that was in one oath this in two Wherefore whatsoever respects steered in the reare of the Kings course it s lesse materiall so long as the vanne was right albeit that the sequell will prove not much different from the premises as will appeare in the foot of the whole account Thus entered the first Norman upon the Saxon Throne and as he had some colour of right to countenance his course William Rufus so had his sonne his fathers last will and yet he had as little right as he This was William Rufus that was of his fathers way but of a deeper die and therefore might well be called William Rufus or William in grain He was exceeding happy in the feare or favour of the
in fifteen mannors two Townships with many liberties upon the votes of the Freeholders in a County court and that the sentence was allowed and commended by the King and submitted to by all In the next place we are to come to the Hundred Courts Hundred court of which there are by the Normans allowed two sorts the first whereof was holden twice a yeere This was formerly called the Torne and was the Sheriffs Court hereof little notice is taken Ll. Hen 1. c 8. saving that by the Laws of Henry the first its worke seems to be much designed to the view of free pledges But the more ordinary Court is that which belongs to the Lord of the Hundred unto whom also belong the fines in cases there concerned This Court is to be holden once in each moneth Ll. Gulielm cap. 41. Ll. Hen. 1 c. 7. Ll. Gulielm cap. 41. Ll. Gulielm cap. 42. and no suit to be begun in the Kings Court that regularly ought to begin in the Hund ed. No distringas shall issue forth till three demands made in the Hundred And three distresses shall then issue forth and if upon the fourth the party appeare not execution shall be by sale of the distresse and the complainant shall receive satisfaction But by the latter Laws of the same King there is but two summons allowed and then two distresses Ll. Hen 1. c. 64. and in case no appearance be execution shall be for the complainant and for the Kings fine Ll. Hen. 1. c. 7. Lastly as the case concerned either persons or places sometimes they used to joyn severall Hundreds together into one Court but this was by speciall Commission or Writ As touching inferiour Courts of Tows and Mannors there 's little observation to be had Courts of Towns and Mannors Ll. Hen. 1. c. 7. being of too private a regard to come into fame in those rough times yet in Henry the firsts Laws its ordered that Town courts should meet every moneth and that Lords should hold Plees either in their own persons or by their Stewards and that the chiefe man in that Parish with foure other of the chiefer sort and the Minister or Parish Priest should joyn their assistance in that worke But in nothing more did the Norman Kings shew their paternall love to the Common-weale Decenners then in the law of pledges or Decenners for as of all other beauties it suffered most blemish from the storme of the Norman invasion so was it their especiall care to renew the life thereof not now amongst the natives onely but joyning the Normans to the Saxons in the same bond of brotherhood utterly drowned thereby all memory of Lordly power and so of divers peoples making one conquered even conquest it selfe if any were and made all joynt-partners in one common liberty Ll. Gulielm cap. 64. Ll. Hen. 1. c. 8. Every free man must be under pledges to satisfie justice in case of delinquency Over every nine persons under pledges there must be one man in authority View of free pledges must be to see that the Decennaries be full and if any be departed to enquire the cause and if any be come in whether he be under pledges or not And thus the Norman Kings had their people under treble guard one of fealty the other of association and the third that of pledges and all little enough to secure that which they in their own consciences might have some cause to question whether it belonged to them or not CHAP. XLIX Of the immunities of the Saxon free men under the Norman government THe freedom of an English man consisteth in three particulars First in ownership of what he hath Secondly in voting any Law wherby that ownership is to be maintained and thirdly in having an influence upon that Judicatory power that must apply that Law Now that the English under the Normans enjoyed all this freedome unto each mans own particular besides what they had in bodies aggregate may appeare as followeth The free men of England were such as either joyned in the warre with Harold against the Normans or such as absented themselves from the way of opposition or enmity and were either waiting upon their own affaires or siding with the Normans and questionlesse all the sadnesse of the warre befell the first sort of the English whose persons and estates to make the waies of the first Norman William regular and of one piece never fell so low as to come under the Law or rather the will of conquest but in their worst condition were in truth within the directory of the Law of forfeiture for Treason against their Soveraigne Lord whose claim was by title as hath been already noted The other sort either did appeare to be the Normans friends or for ought appeared so were and so never offending the Law never suffered any penalty but held their persons and possessions still under the patronage of Law as anciently they and their ancestors had done and that this was the Normans meaning they publish the same to the world in a fundamentall Law whereby is granted Ll. Gulielm cap. 55. That all the freemen of the whole Kingdome shall have and hold their Lands and possessions in hereditary right for ever And by this being secured against forfeiture they are further saved from all wrong by the same law which provideth That they shall hold them well or quietly and in peace free from all unjust Tax and from all Tallage so as nothing shall be exacted nor taken but their free service which by right they are bound to performe This is expounded in the Laws of H. 1. cap. 4. that no tribute or tax shall be taken but what was due in the Confessors time Under the word Tax is understood monetagium commune per civitates or comitatus so as aides and escuage are not included for they are not charged upon Counties and Cities but upon Tenures in Knight-service nor was Dane grelt hereby taken away for that was a Tax in the Confessors time and granted by Parliament So then the Norman Kings claimed no other right in the lands and possessons of any of their subjects then under and by the law or common right and they conclude the law with a sicut which I thus English As it is enacted to them or agreed by them and unto them by us given and granted by the Common-councell of our whole Kingdome Statutum est eis illis à nobis datum concessum per commune concilium totius Regni nostri I leave the words to be criticized upon as the Reader shall please being well assured that the most strained sence can reach no further then to make it sound as an estoppell or conclusion to the King and his successors to make any further claim unto the estates of his subjects then by Law or right is warrantable under which notion conquest never did nor can come as shall more fully be manifested hereafter But
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
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
sounds as much as if the tenants were bound by their tenures to ayd their Lord in all cases of extraordinary charge saving that the Lord could not distraine his tenant for ayd to his warre and this according to the Lords discretion Ibid. for Glanvile Glanv l. 9. c. 8 saith that the law determined nothing concerning the quantity or valew of these ayds These were the Norman waies and savoured so much of Lordship that within that age they were regulated But that of reliefes was an ancient sacrifice as of first fruits of the tenement to the Lord in memoriall of the first Lords favour in conferring that tenement Ibid. and it was first setled in the Saxons time The Lords priviledge of power extended so farre as to distraine his tenants into his own Court to answer to himselfe in all causes that concerned his right and so the Lord became both Judge and party which was soon felt and prevented as shall appeare hereafter Another priviledge of the Lords power was over the tenants heire after the tenants death in the disposing of the body during the minority and marriage of the same As touching the disposing of the body the Lord either retained the same in his own power Glanv 7.10 or committed the same to others and this was done either pleno jure or rendring an account Ibid. c. 12. As concerning the marriage of the females that are heires or so apparent the parents in their life time cannot marry them without the Lords consent nor may they marry themselves after their parents death without the same and the Lords are bound to give their consent unlesse they can shew cause to the contrary The like also of the tenants widdows that have any dowry in the lands of such tenure And by such like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons 14. Of the power of the last Will. It is a received opinion that at the common law no man could devise his lands by his last will If thereby it be conceived to be against common reason I shall not touch that but if against custome of the ancient times I must suspend my concurrence therewith untill those ancient times be defined for as yet I finde no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all conveyances Voluntas donatoris de cetero observetur And therefore nothing was more ordinary then for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. M. Paris An. 1216. Hoveden An. 1199. Malmsb. nov l. 1. Malmsb. l. 3. Thus King John appointed Henry the third his successor and Richard the first devised the Crown to King John and Henry the first gave all his lands to his daughter and William the Conquerour by his last will gave Normandy to Robert England to William and to Henry his mothers lands If then things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller free holds should be of too high esteem to be credited to such conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposall of the last will of the possessour nor doe I thinke that either they were thus in this Kingdome or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vaine Glanvil l. 7. cap. 1 5. I have observed the words of Glanvile concerning this point and I cannot finde that he positively denieth all conveyance of land by Will but onely in case of disherison the ground whereof is because its contrary to the conveyance of the law and yet in that case also alloweth of a disposing power by consent of the heire which could never make good conveyance if the will in that case were absolutely voide and therefore his authority lies not in the way Nor doth the particular customes of places discountenance but rather advance this opinion for if devise of lands were incident to the tenure in Gavell kind and that so generall in old time as also to the burgage tenures Ll. Gulielm cap. 61. which were the rules of Corporation and Cities Vbi leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common law And therefore those conveyances of lands by last will that were in and after these times holden in use seem to me rather remnants of the more generall custome wasted by positive lawes then particular customes growing up against the common rule It s true that the Clergy put a power into the Pope to alter the law M. Paris An. 1181. Hoved An. 1181. Decret Alex. pap Hoveden fo 587. as touching themselves in some cases for Roger Archbishop of Yorke procured a faculty from the Pope to ordaine that no Ecclesiasticall persons Will should be good unlesse made in health and not lying in extremity and that in such cases the Archbishop should possesse himselfe of all such parties goods but as it lasted not long so was himselfe made a president in the case for being overtaken with death ere he was provided he made his will in his sicknesse and Henry the second possessed himselfe of his estate And it s as true that Femme coverts in these daies could make no will of their reasonable part Glanv l. 7. cap. 5 16. because by the Saxon law it belonged joyntly to the children Nor could usurers continuing in that course at the time of their death make their will because their personall estate belonged to the King after their death and their lands to their Lords by escheate although before death they lie open to no censure of law but this was by an especiall law made since the Conquerours time for by the Saxon law they were reputed as outlaws Neverthelesse all these doe but strengthen the generall rule Ll. Edw. 37. viz. that regularly the last will was holden in the generall a good conveyance in law If the will were onely intended and not perfected or no will was made then the lands passed by descent and the goods held course according to the Saxon law Glanv l. 7. c. 6. cap. 8. viz. the next kinsmen and friends of the intestate did administer and as administrators they might sue by Writ out of the Kings court although the Clergy had now obtained so much power as for the recovery of a legacy or for the determining
may see the great difference between the Prince and the King in one and the same man The most part of those laws were little other then plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergy and therefore delivered the last law in a petitionary way to the Clergy because it concerned the execution of justice in prohibited times and yet bound up all with a salvo to himselfe and his prerogative like a wise King that would neither loose right nor doe wrong nor yet stickle to debate with his subjects now when as his eye was upon a further marke Walsing 46. For Leolin the Prince of VVales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to runne its course that he might have done the sooner Otherwise he had a seed of his fathers conceit that laws are not made for Kings as appeared afterward for after he had gotten his army into the field he tooke a fifteenth which was granted to his father and this was inaudito more M. West An 1276. but there was no disputing with power and therefore the subject must be contented rather to score it up against the future then require present pay so dangerous a thing it is for England that Kings should have occasion to gather armies though for never so honourable imployment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine yeeres travell before they could attaine the shore although it had been often within their view It may be the King found it advantagious for his government to maintaine an Army in the field under the colour of the Welsh warre that he might more bow his subjects to his own bent for during these warres the King made many breathings and tooke time to looke to the husbanding of his own revenue as those Ordinances called Extenta manerii and Officium coronatoris doe witnesse and the Statute of Bigami But the people were not altogether yet tamed for the times being still in warres and they occasioning much waste of treasure put the King to the utmost pitch of good husbandry and one degree beyond the same so as under colour of seising his own he swept up also the priviledges and liberties of his subjects M. West Polyd. virg some authours reciting the complaints of the Church men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another combuston had not the meeting at Glocester setled things for the present by referring the right of franchises to debate in the Eyer and ordering reseisure of such liberties into the subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth chapter of the Statute of Bigami Neverthelesse however debonaire the King seemed to be the sore between him and his subjects was not fully cured nor did the Lords trust him further then needs must for whether they served in the field or met at councell still they were armed and during this daring of each other were many profitable lawes made whiles neither party durst venture bloodshed in touching too nigh upon the priviledges of each other principally because the affaires in Wales were but laid asleepe and upon reviving might turne the ballance to either side The wars awake againe and therein are consumed nigh five yeeres more of the Kings reigne so as what ever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the prerogative of the Crown at home Nor had he scarcely breathed himselfe and army from the Welsh wars but he found both France and Scotland his enemies at once The King faced onely the first and fought the second which held him work the remainder of his daies at the same time also he arred both the Clergy and Laity at his own home as if providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the world whether his justice was spontaneous or by necessity for as yet he held the grand Charter at parley and therefore was rather eyed then much trusted Albeit he was put upon confidence in the subjects discretion for ayd of him in his continuall undertakings nor did they disclaime him herein however chargable it was for all seem willing he should be imployed any where so as not within the foure Seas It s probable the King knew it and therefore having made a voyage into France he changed the Scene of warre but to the other side as it were of a river in hope his Lords would follow but it would not be this angred him and he them nor would his Clergy allow him any ayd papa inconsulto and therefore he outs them from his protection these and his irregular preparations for warre by summons not onely of his Knights but all other that held Land worth 20 li. per annum Walfing 69. and taxes imposed by an arbitrary way increased rancour into a kind of state scoule little better then a quarrell for appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the grand Charter at the long runne and allowed it as the common law of the Kingdome and seconded the same with many succeeding confirmations in the 27 25 Edw. 1. 28 yeeres of his reigne as if he had utterly renounced all thought of a contrary way but the Stat. in his 28th yeere had a sting in the taile that was as ill as his saving of ancient ayd and prisals which was in the Stat. of confirmation of the Charters though it were omitted in this Stat. for the saving was of such a sence as time and occasion would move the Kings heart to make it and thus this Statute became like a Hocus pocus a thing to still the people for the present and serve the Kings turne that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good successe and the terrour of those that had stopped the broad way of his extravigant prerogative and therfore looks bigge rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his warres in Flanders all come and submit and as
them irrecoverably Thus favourites instead of Cement between Prince and people becomming rocks of offence bring ruine sometimes to all but alwaies to themselves The King foresaw the storme and thought it safest first to cry truce with the people and come to agreement with them by common consent Prerog Reg. 17 Edw. 2. for the extent of his prerogative in certaine particular cases questionable and this summed up become a Statute for future times to be a ne plus ultra between the King and people Stat. de Homag The like agreement likewise was concerning services of tenants to their Lords and an oath framed to vindicate them from all incroachments Stat. Templar And something was done to calme the Clergy for the demolishing of the Templer Knights but the wound was incurable words are not believed if actions doe not succeed nor will oaths now made to bind Kings Bishops Councellors of State Sheriffs Majors Bailiffs or Judges to justice nor directions for regulating of Courts nor Ordinances against false moneys and weights nor all of them settle the people but they adhere to the Queen burning with jealousie against the King and both her selfe and the Lords with rage against the Spencers The King flies and being forsaken of the people the Lords the Clergy his own sonne and the wife of his own bosome and of God himselfe as the most absolute abject that ever swayed Scepter lost the same and being made a monument of Gods revenge upon inordinate desires in a King and of the English people being enraged not long surviving his demise he died a death meet to be forever blotted out of the thoughts of all subjects but to be had in everlasting remembrance of all Kings For if a Kingdome or Parliament misleads the King at the worst he is but misled by his Councell but if he be drawn aside by favourites he must thanke his own lust in the one he hath but the least share in the burthen in the other he must beare the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the third NOw was prerogative mounted up to the highest pitch or endeavoured so to be either through the weaknesse or power of these Kings of whom the first and last had little to ground upon but their own will and the other I meane Edward the first had more wisdome and power but was otherwaies distracted by forraine and more urgent imployments so as the worke fainted before it came to its full period The contest was between the King and Barons who till those daies were rather the great and richer sort of men then Peeres although they also were of the number I am not so sharpe sighted as to reach the utmost intentions of the Lords but their pretences are of such publique nature as its plaine that if their private interest was wrapped up therein they were inseparable and I shall never quarrell the Lords aime at private respects whenas its plaine the publique was so importantly concerned and yet I will not justifie all that I finde written concerning their words and Actions M Paris An. 1217. The speech of the E. of Cornwall to his elder brother and King Henry the third I will neither render up my Castle nor depart the Kingdome but by the judgement of the Peeres and of Simon the E. of Leicester to the same King That he lied and were he not a King the Earle would make him repent his word and of the Lords that they would drive the King out of his Kingdome and elect another and of the E. Marshall to Edward the first that he would neither goe into Gascoine nor hang such other doe savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some alay if the generall rudenesse of the time the Kings injurious provocations and the passions of colerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the kingdome of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above law the Lords exceeded not their places in pressing him with their councels to conforme to the laws and in maintaining that trust that was reposed in them in keeping off such sinister councels and invasions as might violate the laws and liberties or hinder the currant of justice concerning which I shall shortly state the case and leave it to the censure of others The government of the people of this Nation in their originall was Democraticall mixt with an Aristocracy if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in forraine parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the warre yet in time of peace was not of that heigth as to rule alone I meane that whereas the Lords formerly had the principall executory power of lawes setled in them they never were absolutely devested of that power by the accesse of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concurre the people generally sided with the Lords and so in conclusion the King suffered in the quarrell From this ground did arise from time to time the wanderings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this copartnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherwaies be supposed where Councels are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appeare against these Kings whereof we treat in cases where they appeared against the laws and liberties of the people it was neither new nor so heinous as it s noised for them who are equally if not more intrusted with the Common-wealth then the King by how much the Councellors are trusted more then the councelled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by threats and warre It s as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall adde to what hath been already said first that Knight service was for the defence of the kingdome principally Secondly that the greatest power of Knight service rested with the Lords not onely in
Circumspect agatis for in such cases the Ecclesiasticall Judge hath cognisance notwithstanding the Kings prohibition It s therefore neither grant nor release but as it were a covenant that the Clergy shall hold peaceable possession of what 〈◊〉 had upon this ground that the Kings prohibition hath no place in such things as are meerly spirituall So as hereby the Clergy got a judgement against the Crown by confession and an estopell upon this maxime that spirituall things belong to spirituall men into which ranke the Kings person cannot come thus thought they but what are spirituall causes and why so called are they such as concerne spirituall persons and things this was the old way marke but if we bring into this Category Adultery Fornication Incest c. we shall marre all Linwood tels us that mere spiritualia are such as are sine mixtura temporalium there may be somewhat in this though I cannot finde it nor can I make out the sence of the terme any other way but to limit it to such things which by common custome the Ecclesiasticall Judge had cognisance of for otherwise neither King nor law ever intended it to be expounded by the Canon nor was it the intent of this Writ Law or Licence call it what you will thus to conclude as the particulars following will manifest Fornication Adultery and such like punished sometimes upon the body and sometimes upon the purse These crimes the Saxons punished by the temporall power as I have already shewed The Normans continued this course if we may believe the Conquerours lawes which gave the fine in such cases to the Lord of the delinquent Ll. Gulielm cap. 14 19 371. And it is confessed that Henry the first and the second continued it as the Clergies own complaint just or unjust doth witnesse And what course was holden in the times of King Steven and John is to me unknown M. Paris addit fo 201. art 28. nor is it much to be regarded seeing the latter did he cared not what and the former to gaine the good will of the Clergy regarded not what he did The custome therefore cannot be made good for the Clergy much lesse to punish the bodies of freemen in such cases it being contrary to the grand Charter never asked by the Clergy formerly nor no complaint before now for deniall for my part therefore I shall not apprehend it of a higher nature then the Kings Writ which in those daies went forth at randome if the 44th Article of the Clergies complaints foregoing be true It be 〈◊〉 so contrary to the common sence of Parliament to give the bodies of the free men to the will of the Clergy to whom they would not submit their free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerke Defamation to reforme not to give dammage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the valew Mortuaries due by custome A pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the third who was King but yesterday as the Articles of complaint formerly set down doe manifest Nor had the Clergy ever better title then connivance of some such favourites as King Steven whose acts may peradventure be urged against Kings but not against the people unlesse their owne act can be produced to warrant it The learning in the Princes case wil I suppose admit of a difference Coke lib. 8. for it can never be made out that the Kings Councell in Parliament was the Magnum concilium Regni but onely the house of Lords and therefore whatever passed in Parliament by their onely advice might binde the King but could never reach the Commons nor their liberties And thus the grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it selfe of that which was originaly custome And therefore this law however countenanced can never be concluded to be other then a permission not onely because it was never the act of the Commons of England but because its contrary to the liberty of the free men and it s beyond all imagination that the Commons should out themselves from the protection of the Common law and yoke themselves their free holds and estates under the bondage of the Canons nor ought such a construction to be admitted without expresse words to warrant it As for the conclusion it is much worfe and not onely dishonourable to the King in binding his armes from protecting his Subjects by the Common lawes and so in some respects making them outlawes but dishonourable to it selfe whiles it makes prohibitions grounded upon Laws to be nullities by a late tricke of non-obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergy and thus are all set at liberty from any rule but that of licenciousnesse Neverthelesse this Law did thrive accordingly for we finde scarce any footsteps in Story of any regard had thereof till it became gray headed For it was not long ere the King stood in need of money and was necessitated to try the good wils of the Clergy more then once this occasioned them to be slow in answer and in conclusion to deny that they should ayd the King with any more money Antiq. Brit. vit Winchelsy Papa inconsulto The King hereupon disavowes the Clergy and leaves them to the Romish oppressions which were many and then the Clergy rub up all old sores and exhibite their complaints to their holy Father Baronus Annal An. 1306. to this effect 1. That the Kings Justices intermeddle in testamentary causes accounts of Executors and cognisance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the Kings carriages That the Kings Mils were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their goods were seised till their accounts were made That Ecclesiasticall possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the Kings Justices tooke cognisance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Churchyards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the Kings court for crimes and being acquitted the informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the Kings court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are inlarged in
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
of all Glanvil lib. 14. cap. 1. although the most heynous of all was in the same condition As touching breakers of prison in these times it was felony for what cause soever they were committed and therefore their imprisonment was without baile for who so makes no conscience of breaking the prison his credit will little availe yet it must be acknowledged that the Law imprisoned few without baile in those foregoing times but in case of felony or execution but afterwards the cases of commitment being ordinary even in matters of mean processe and because mens credits waxing weake by the weaknesse of their estates now wasted by the civilwars there fore in Edward the seconds time a law was made to restrain the felony in such cases onely to the breach of prison by such as were committed for felony And as touching imprisonment upon excommunication its manifest that within five yeeres before the making of this law it was complained that such were set at liberty by the Kings Writ de homine replegnando without the Bishops consent Addit M. Paris But now the Clergy had gotten the day of the Law which did much decline from that guard of imprisonment but hated perpetual imprisonment Nor was this complaint grounded upon any other law then that of the Canon for the common law ever held the supreame cognisance of Excommunication within its own power as upon the Writ de quare excomunicato may appeare Other crimes are yet also by this law allowed baile such as are persons indicted of larceny before Sheriffs c. persons imprisoned upon slight grounds Receivers and Accessories before felony Trespassers persons appealed by provers after the death of the approvers If baile be granted otherwise then the law alloweth the party that alloweth the same shal be fined imprisoned render dammages or forfeit his place as the case shall require And thus the iniquity of the times was so great as it even forced the subjects to forgoe that which was in account a great liberty to stop the course of a growing mischiefe Spreaders of false news West 1. cap. 34. Publishers of false news whereby discord or slander may arise between the King and his people shall be imprisoned till he produce the relator It is therefore an offence against the Crown to procure or maintaine an ill conceipt in the King of the people or an ill conceipt in the people of the King and it s as well an offence against the Crown for the King to conceive ill of his people as for them of him But all must be grounded upon falshood for truth respects no mans parson all men are equally bound by that woe if they call good evill or evill good although difference must be made in the manner of representation And upon this ground of maintaining strife was a law made also against conspiracy to make or maintaine indictment 33 Edw. 1. suit or quarrell and it was likewise finable Merton cap. 3. Redisseisors and post disseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly redisseisin was under no other Law then that of disseisin but by this law made a matter belonging to the Crown and tried before the same Judges that had the power of inquiry of all offences against the Crown The penalty of imprisonment in this case was to be without baile Marlbr cap. 8. but onely by the Kings Writ de homine replegiando and yet even thus the penalty was not sufficient to restraine the offence and therefote a law was made to abridge the power of that Writ West 2. cap. 26. as touching such offender and they became irremediable as touching their liberty by that Writ besides that upon recovery had against them they lost double dammages Trespassers upon Parks West 1. cap. 20. Trespassers in Parks and Fishponds convicted within a yeere and a day shall render dammages suffer imprisonment for three yeeres and give security of good behaviour for time to come If any beasts be taken in a felonious manner he shall be proceeded against as a robber From the times of King Steven the Lords and great men endeavoured to advance their power and greatnesse so high above the meaner sort of free men as they made Kings continually jealous of their power Castles had been a bone of long contention between them but they being for the most part taken away the strife was about prisons and power to imprison offenders and that also after much opposition they layd aside yet the violence of these times being such as though felonies were somewhat dreaded trespasses of the highest nature were little regarded such as were riotous hunting in their Parks and fishing in their waters The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing but this was also denied them Merton cap. 11. though by Henry the third in his first time when as yet the government was not worsted by projects of arbitray power or corrupt counsels of forrainers nor himselfe a man able to sway with the Lords in matters that were of doubtfull prerogative And to speake indifferently its better for the liberty of the subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by law then by the warrants of great men especially in their own cases and therefore in this matter the Kings prerogative was a patron to the freemens liberty Neverthelesse these great men give not thus over their game for though in times of publique calamities little place is left for pleasure to any man yet when times are grown to more quiet pleasure revives and the great men renew their motion and though they could not obtaine prisons to their own use as they endeavoured at the meeting at Merton yet now they obtaine the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the losse of their pleasure And yet this law sufficed them not but they obtaine a further priviledge An. 21. Edw. 1. that such persons as are found so trespassing and refusing to submit may be killed without perill of felony CHAP. LXX Of the Militia during these Kings reignes THe Souldiery of England may be considered first in regard of the persons Secondly their armes Thirdly their service The persons were as formerly not onely such as were milites or tenants in Knight service but also such as served at the plow and concerning them both it is to be considered what the law made by Edward the second holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood Stat. de Milit. 1 E. 2. if they shew not cause to the contrary Regularly all tenants by Knightservice ought to be Knights but de facto were not so as in these times there was a
unlesse as their ancesters with weapons in their hands nor worthy of the presence of a King under other notion then as a Generall in the field and themselves as Commanders that are never a la mode but when all in Iron and Steele I say to make a Law that must suddenly binde men from riding or being armed when no man thought himselfe safe otherwise was in effect to expose their bare necks to the next turne of the Sword of a King that they did not overmuch trust and the lesse in regard he trusted not them I doe not wonder therefore if the Parliament liked not the worke but left it to the King to provide for the keeping off breaches of the peace and promised there assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the first yet it was not to all intents nor did it continue for besides the Statute of Torniments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probabilty was made after that law last before-mentioned the Statute at VVinton made after this Law nigh six yeeres space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said act And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chiefe moderatorship of warre and peace within the Realm of England resteth hitherto upon the Parliament next under God and in the King no otherwise then in order to the publique the rule whereof can be determined by no other Judge then that which can be intended to have no other respect then the publique good and which is the abridgement of the large volume of the Kingdom A summary conclusion ANd thus have I brought the shape of English government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish tempests the rocks of Norman invasion and the Quicksands of Arbitrary government under Popes and Kings to the Haven much defaced it is I confesse by the rage of time and yet retained the originall likenesse in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over free men Then by flattering of the free men into their designes hovered above them all but not being able to maintaine their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious then others and they againe more populer then them seeke severall interests And thus Kings aided by their party to a Supremacy which they were never borne to and it by them into a preheminence above their Peeres which neither law nor custome ever gave them are of Moderators in the Councell of Lords become moderators of those Councels and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the free men by extorsion and opression as Lords over tenants yet could they never prevaile over them as free born subjects to gaine their consent to give their right or the law up to the Kings beck but still that remained arbiter both of King and people and the Parliament Supreame expounder and Judge both of it and them Other argument hereof there will be little need Bract. lib. 2. c. p. 16. besides what hath formerly appeared then what we finde in Bracton who wrote in the time of Henry the third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earles and Barons Earles according to their name Comites are the Kings associates and he that hath an associate hath a master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unlesse they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the State of an English King in Henry the thirds time I shall adde hereto a concurrent testimony of a Lawyer also in Edward the first time Although saith he the King ought to have no equall in the Land Miror Just p 9. yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and party the King by right ought to have companions to heare and determine in Parliament all VVrits and plaints of wrongs done by the King the Queen or their childrsn and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it selfe unto which the Royall assent was added Edw. 2. and the same sealed with an Oath in the solemne stipulation made by Kings at their Coronation with the people then present in the name of the whole body the summe whereof is wont to be propounded to the King in this manner Remonstr Parliament novem l. 2. An. 1642. though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customes to them granted by the ancient Kings of England your righteous and godly predecessours and especially to the Clergie and people by the glorious King St. Edward your predecessour The Kings answer I doe them grant and promise 2. Will you keep to God and the Church and the Clergie and the people peace and concord sincerely according to your power The Kings answer I will doe it 3. Doe you grant to hold and keep the Laws and rightfull Customes which the Comonalty of your Realm shall have chosen and to maintaine and inforce them to the honour of God after your power The Kings Answer I this doe grant and promise In few words the King promised to keep the lawes already made the peace of his Kingdome and the Laws to be agreed upon by the commonalty the same in subsistance with that of Henry the first VVilliam the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chaine of Gold a serious memoriall of the Kings duty as he is a man and a glorious ornament to him as a King If then the King be under the law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peeres Hitherto certainly an English King is but Primus inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to worke the people to
Chap. 48. Of the severall subservient jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries p. 131 Chap. 49. Of the immunities of the Saxon free men under the Norman government p. 135 Chap. 50. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned p. 138 Chap. 51. Of the like Lawes that concerne common interest of goods p. 142 Chap. 52. Of Laws that concerne common interest of Lands p. 144 Chap. 53. Of divers Laws made concerning the execution of justice p. 150 Chap. 54. Of the Militia during the Normans time p. 152 Chap. 55. That the entry of the Normans into this government could not be by Conquest p. 155 Chap. 56. A briefe survey of the sence of Writers concerning the point of conquest p. 158 CHap. 57. Of the government during the Reignes of Steven Henry the second Richard the first and John and first of their titles to the Crown and disposition in government p. 165 Chap. 58. Of the state of the Nobility of England from the Conquest and during the Reigne of these severall Kings p. 172 Chap. 59. Of the state of the Clergie and their power in this Kingdome from the Norman time p. 175 Chap. 60. Of the English Communally since the Norman time p. 188 Chap. 61. Of Judicature the Courts and their Iudges p. 189 Chap. 62. Of certaine Laws of judicature in the time of Henry the 2. p. 193 Chap 63. Of the Militia of this Kingdome during the Reigne of these Kings p. 205 CHap. 64. Of the government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government p. 207 Chap. 65. Of the condition of the Nobility of England till the time of Edward the third p. 221 Chap. 66. Of the state of the English Clergie untill the time of Edward the third and herein concerning the Statutes of Circumspecte agatis Articuli cleri and of Generall Councels and Nationall Synods p. 225 Chap. 67. Of the condition of the Free men of England and the grand Charter and severall Statutes concerning the same during the Reigne of these Kings p. 253 Chap. 68. Of Courts and their proceedings p. 284 Chap. 69. Of Coroners Sheriffs and Crowne pleas p. 286 Chap. 70. Of the Militia during these Kings reignes p. 294 Chap. 71. Of the Peace p. 300 PROLOGUE THe policie of English government so farre as is praise-worthy is all one with Divine providence wrapped up in a vaile of Kings and wise men and thus implicitely hath been delivered to the World by Historians who for the most part doe read men and weare their Pens in decyphering their persons and conditions some of whom having met with ingenuous Writers survive themselves possibly more famous after death then before Others after a miserable life wasted are yet more miserable in being little better then tables to set forth the Painters workmanship and to let the World know that their Historians are more witty then themselves of whom they wrote were either wise or good And thus History that should be a witnesse of Truth and time becomes little better then a parable or rather then a nonsence in a faire Character whose best commendation is that it s well written Doubtlesse Histories of persons or lives of men have their excellency in fruit for imitation and continuance of fame as a reward of vertue yet will not the coacervation of these together declare the nature of a Common-weale better then the beauty of a body dismembred is revived by thrusting together the members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queenes of this Realme may justly challenge the honour of passing many excellent Lawes albeit its the proper worke of the representative body to forme them yet to no one nor all of them can we attribute the honour of that wisdome and goodnesse that constituted this blessed frame of government for seldome is it seen that one Prince buildeth upon the foundation of his predecessour or pursueth his ends or aimes because as severall men they have severall judgements and desires and are subject to a Royall kind of selfe-love that inciteth them either to exceed former presidents or at least to differ from them that they may not seem to rule by coppy as insufficient of themselves which is a kind of disparagement to such as are above Adde hereunto that it s not to be conceited that the wisest of our ancestors saw the Idea of this government nor was it any where in president but in him that determined the same from eternity for as no Nation can shew more variety and inconstancy in the government of Princes then this especially for three hundred yeeres next ensuing the Normans so reason cannot move imagination that these wheeles by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aime therefore shall be to lay aside the consideration of man as much as may be and to extract a summary view of the cardinall passes of the government of this Kingdome and to glance at various aspects of the ancient upon the moderne that so these divers Princes and wise councels in their different course may appeare to be no other then the instruments of him that is but one and of one mind whose goings forth have been in a continuall course of Wisdome and goodnesse for our selves in these latter daies and herein I am encouraged because I am not in danger of temptation to flattery or spleene nor pinched with penury of grounds of observation having to doe with a Nation then vvhich a cleerer miror of Gods gracious government is not to be found amongst all the Nations and peoples under Heaven The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and
Church-government during these times fol. 146. XVIII Of the Court of Chancery fol. 162. XIX Of the Courts of Crown Plas and Common Law fo 165 XX. Concerning Sheriffs fol. 168. XXI Of Justices and Lawes concerning the Peace fol. 170. XXII Of the Militia during these times fol. 175. XXIII A short survey of the Reignes of Edward the fourth Edward the fifth and Richard the third fol. 181. XXIV Of the Government in relation to the Parliament fol. 187. XXV Of the condition of the Clergie fol. 191. XXVI A short sum of the Reignes of Henry the seventh and Henry the eighth fol. 194. XXVII Of the condition of the Crowne fol. 202. XXVIII Of the condition of the Parliament in these times fol. 223. XXIX Of the power of the Clergy in the Convocation f. 229. XXX Of the power of the Clergy in their ordinary Jurisdiction fol. 232. XXXI Of Judicature fol. 241. XXXII Of the Militia fol. 245. XXXIII Of the Peace fol. 253. XXXIV Of the generall Government of Edward the sixth Queen Mary and Queen Elizabeth fol. 259. XXXV Of the Supream power during these times fol. 268. XXXVI Of the power of the Parliament during these times fol. 277. XXXVII Of the Jurisdiction Ecclesiasticall during these last times fol. 283. XXXVIII Of the Militia in these later times fol. 290. XXXIX Of the Peace fol. 297. XL. A summary Conclusion upon the whole matter fol. 300. A PREFACE CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND THE more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this second part for some time but observing the ordinary humor still drawing off and passing a harsher censure upon my intentions in my first part then I expected I doe proceede to fulfill my course that if censure will be it may be upon better grounds when the whole matter is before Herein I shall once more minde that I meddle not with the Theologicall right of Kings or other Powers but with the Civill right in fact now in hand And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power and others even to adnull the right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet licet so making the breach much wider then at the beginning I shall intend my course against both As touching the Commons right jointly with the Lords it will be the maine end of the whole but as touching the Commons right in competition with the Lords I will first endeavour to remove out of the way what I finde published in a late Tractate concerning that matter and so proceede upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judiciall power of the Parliament rested wholly in them lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not knowne nor heard of till punier times then these This last will be granted Viz. That these severall titles of Knights Citizens and Burgesses were not known in Parliament till of later times Neverthelesse it will be insisted upon that the Commons were then there The second will be granted but in part Viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor the whole The first is absolutely denyed neither is the same proved by any one instance or pregnant ground in all that Book and therefore not cleerly demonstrated by Histories and Records beyond contradiction as the Title page of that Book doth hold forth to the World First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab authoritate Negativa which is no argument in humane testimony at all Secondly the greatest number of instances in that Booke are by him supposed to concerne Parliaments or generall Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodicall Conventions for Church matters whereunto the poore Commons he well knoweth might not come unlesse in danger of the Canons dint or if they did yet had no other worke there then to heare learne and receive Lawes from the Ecclesiasticks And the Lords themselves though present yet under no other notion were they then as Councell to the King whom they could not cast out of their Councell till after Ages though they often endeavoured it Thirdly the Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the ayde of the Parliament And it is no lesse true that Kings with the Lords did in their severall ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in Warr to be Lords in peace but hard to lay downe that power at the foot of Justice which they had usurped in the rude times of the Sword when men labour for life rather then liberty and no lesse difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrey-men till peace by continuance had reduced them to a little more sobriety Nor doth it seeme irrationall that private differences betweene party and party should be determined in a more private way then to trouble the whole Representative of the Kingdome with matters of so meane concernment If then those Councils mentioned by the Author which concerne the Kings Grants and Infeodations and matters of Judicature be taken from the rest of the Presidents brought by him to maintaine the thing aimed at I suppose scarce one stone will be left for a foundation to such a glorying Structure as is pretended in the Title page of that Booke And yet I deny not but where such occasions have befalne the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergy onely and they might thinke it sufficient for them to honour their Writings with the great Titles of Men of Dignity in the Church and Common-wealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appeare they were in some of the particular instances ensuing to which we come now in a more punctuall consideration The first of these by his owne words appeare to be a Church-mote or Synod it was in the yeare 673. called by the Arch-Bishop who had no more power to summon a Parliament then the Author himselfe hath And the severall conclusions made therein doe all shew that the people had no worke
there as may appeare in the severall relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he maketh much use of and therefore I shall be bold to make the best use of him that I can likewise in Vindicating the truth of the point in hand For whatever this Councill was it s the lesse materiall seeing the same Author recites a president of King Aethelbert within six yeares after Austins entry into this Island which was long before this Councill which bringeth on the Vann of all the rest of the Opponents instances which King called a Councill styled Commune Concilium tam Cleri quam Populi Pag. 126. and in the conclusion of the same a Law is made upon the like occasion Si Rex populum Convocaverit c. in both which its evident that in those times there were Councils holden by the People as well as the Magnates or Optimates His next instance is in the yeare 694. which is of a Councill holden by the Great Men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also minde him that the same Author reciteth a Councill holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and is very probable that all the Wise men of the Kingdome were not concluded within the Lordly dignity The third instance can have no better successe unlesse he will have the Pope to be allowed power to call a Parliament or allow the Arch-Bishop power to doe that service by the Popes command for by that authority this what ever it be was called if we give credit to the relation of Sir Henry Spelman who also reciteth another Councell within three leaves foregoing this Concil Britt Pag. 212. called by Withered at Barkhamstead unto which the Clergy were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Ibid. pa. 194. Souldiers or Knights were in the common Councels as well as other Great Men. In the next place he bringeth in a Councill holden in the yeare 747. Ibid. pa. 242. 245. which if the Arch-Bishop were then therein President as it s sayd in the presence of the King was no Parliament but a Church-mote and all the conclusions in the same doe testifie no lesse they being every one concerning Ecclesiasticall matters Pag. 219. And furthermore before this time the Author out of whom he citeth this Councill mentioneth another Councill holden by Ina the Saxon King in the presence of the Bishops Princes Lords Earles and all the wise old Men and People of the Kingdome all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastry of Glastenbury was made not onely in the presence of the Great Men but Cum praesentia populationis and he saith that Omnes confirmaverunt which I doe not mention as a worke necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty yeares after hee meeteth with another Councill which he supposeth to be a Parliament also but was none unlesse he will allow the Popes Legate power to summon a Parliament It was holden in the yeare 787. and had he duely considered the returne made by the Popes Legate of the Acts of that Councill Pag. 300. which is also published by the same Author hee might have found that the Legate saith that they were propounded in publike Councill before the King Arch-Bishop and all the Bishops and Abbots of the Kingdome Senators Dukes or Captaines and people of the Land and they all consented to keep the same Then he brings in a Councill holden in the year 793. which he would never have set downe in the list of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it s sayd to be holden Anno 974. before nine Kings fifteene Bishops twenty Dukes c. which for ought appeares may comprehend all England and Scotland and is no Parliament of one Nation but a party of many Nations for some great matter no doubt yet nothing in particular mentioned but the solemne laying the foundation of the Monastry of Saint-Albans What manner of Councill the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the yeare 796. That Councill which is next produced was in the yeare 800. and is called in great letters Concilium Provinciale which he cannot Gramatically construe to be a Parliament yet in the Preface it is sayd that there were Viri cujuscunque dignitatis and the King in his Letter to the Pope saith concerning it Pag. 321. Visum est cunctis gentis nostrae sapientibus so as it seemeth by this and other examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Witagen-mote to Judge and conclude them There can be no question but the next three Presidents brought by the Opponent were all of them Church-motes Concil Brit. Pag. 328. For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters Concil Brit. Pag. 334. and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or
might be founded rather upon an errour in judgement then savagenesse of nature Much lesse cause doth appeare of any cry of oppression upon inferiours but rather against that as the multitude of Kings or Lords doe manifestly witnesse who being observed in the time of Julius Caesar continued in Tiberius his time and afterwards untill in the reigne of Claudius t is said that Caractacus ruled over many Nations for its a certaine maxime that though great Nations may be upholden by power small Territories must be maintained by justice without which the doore will be soon set open to the next passenger that comes especially where the people are bent to war as these were and therein had attained such exquisite perfection of skill in Chariot service as must needs convince us of their much experience against themselves in regard that to other people it was scarce known no nor yet to Caesar himselfe that had been practised in the wars of all Nations And this is all that I can produce out of story touching the government of Britaine before the entry of that light that lightneth every one that commeth into the world CHAP. II. Concerning the conversion of the Britons unto the Faith IT was long before the Sonne of God was inwombed and whiles as yet Providence seemed to close onely with the Jewish Nation and to hover over it as a choice picked place from all the earth that with a gracious eye surveying the forsaken condition of other Nations it glanced upon this Island both thoughts and words reflected on Isles Isles of the Gentiles Isa 42.4.51.5.60.9.66.19 Isles afar off as if amongst them the Lord of all the earth had found out one place that should be to him as the Gemme of the ring of this Terrestriall Globe and if the waies of future providence may be looked upon as a glosse of those Prophesies we must confesse that this Island was conceived in the wombe thereof long before it was manifested to the world To recover the forgotten waies of past providence is no lesse difficult then to search out the hidden bowels of future promises and therefore I shall not busie my selfe to finde out the particular instruments that brought Gods presence into this dark corner but onely glance at the time and manner that it may appeare we were not forgotten nor yet last or least in mind at that time of the dispensation of this grace unto all men I dare not instance as Gildas the certaine time of six yeeres yet I may say that no sooner was the Scepter departed from Judah but with a swift pace both it and the Lawgiver came hither like an Arrow flying through other Countries but sticking with a ne plus ultra in this Island then a People rather then a Common-weale as if we were the onely white that then was in Gods aime It s probable in the highest degree that the worke was done within the first Century and very nigh about the Apostolike times for that in the second Century Britaine was a Church of Fame and known to the Fathers that dwelt afarre off even to Tertullian and Origen and in a short time had out-reached the Roman confines in that Island which had cost them above two hundred yeeres travaile and was grown to the state of the first Christian Kingdome that ever was Tertul. adv Judaeos unto which if we shall allow time for the gathering and growth thereof unto this royall pitch proportionable to the halfe of that which afterward was spent in the like worke upon the Saxon and Danish Kings we must in reason conclude that the worke was first ordered by Apostolicall direction or some of their emissaries Customes also do not obscurely declare ages For before that Pius Bishop of Rome began to speake in the big language of Decrees it was indifferent to keepe Easter either upon the day observed by the Roman Church or on the day according to the Jewes custome and although the Roman Church began within fifty yeeres after the death of John the Evangelist Platina de vit Eleuthe to stickle to impose their custome upon other Churches yet the Church of Britaine conformed not to that course by the space of five hundred yeeres after that time which reflecteth probability Beda l. 3. cap. 25. that the Church was there setled in times of indifferency not by Roman order but by some other purposed messenger The manner yet is more remarkable for that not onely Principalities and Powers and Spirituall wickednesses in high places which are but stumbling-blocks but also naturall wisdome of the Druides who were masters of the consciences of the Britons and their high conceipt of their excellency above the ordinary straine of men and unto which the Crosse of Christ is meere foolishnesse and above all the deep obligement of the people unto these their Rabbies in a devotion beyond the reach of other Nations all these I say stood in the way and rendred the people more uncapable of any new light But when the time fore-set is fully come all mountaines are laid low and double-folded doores fly open and this Conquerour of all Nations attempts Britaine not in the reare nor by undermining but assailes them in their full strength presents in a cleare Sunshine that one true Sacrifice of God man at the appearing whereof their shadowes of many Sacrifices of mans flesh flie away And thus those Druides that formerly had dominion of the Britons faith Origen hom 4. Ezek. become now to be helpers of their joy and are become the leaders of the blind people in a better way and unto a better hope and held forth that light which through Gods mercy hath continued in this Island ever since through many stormes and darke mists of time untill the present noon-day CHAP. III. Of the entry of the Romans into Britaine and the state thereof during their continuance THis conversion of the Druides was but the first step to that which followed for the Decree was more full of grace then to make this Isle to be onely as an Inne for him to whom it was formerly given for a possession Ps 2.8 The Romans are called in to the worke under whose Iron yoke God had subdued all Nations thereby more speedily to bring to passe his own conquest both of that one head and all its members The first Caesar had entred Britaine before the Incarnation and having seen and saluted it and played his prize Tacit. returned with the fame onely of conquest of some few Lordships neighbouring to the Belgicke shore and so it continued correspondent to the Romans or rather forgotten of them till the time of Claudius the Emperour Vit. Agric. who being at leasure to bethink him of the Britons tribute or rather aspiring to honour by a way formerly untroden by his Ancestors first setled Colonies in Britaine and brought it into the forme of a Province and ingaged his successors in a continuall war to perfect
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
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
of Ecclesiasticall Empire and a title according thereunto which at length he attained from an Emperour fitted for his turne and this was enough to make him passe for currant in the Empire But Britaine was forsaken by the Roman Empire above 153 yeeres before so as though the Emperour could preferre his Chaplaines power or honour as far as his owne which was to the French shore yet Britaine was in another world under the Saxons power and not worth looking after till the plundering was over and the Saxon affaires setled so as some fat may be had then an instrument is sought after for the worke and none is found so farre fit to winde the Saxon up to the Roman bent as a Monke that was a holy humble man in the opinion of all but of those that were so in the truth and knew him This is Austin sent by Pope Gregory to doe a worke that would not be publiquely owned it was pretended to bring Religion to the Saxons in England therefore they give him the title of the Saxon Apostle but to be plaine it was to bring in a Church-policy with a kind of worship that rendred the Latria to God and the Dulia to Rome The Saxons were not wholy destitute of Religion and that Gregory himselfe in his Letter to Brunchilda the French Queen confesseth Indicamus saith he ad nos pervenisse Ecclesiam Anglicanam velle fieri Christianam Greg. Epist lib. 5. Epist 59. so as there was a good disposition to religion before ever Austen came and such an one as rang loud to Rome But farre more evident is it from the Saxons keeping of Easter more Asciatico which custome also continued after Austens comming fifty yeers sore against Austens will Bed hist lib. 3. cap. 25. the dispute between Coleman and Wilfride beares witnesse to that and it had been a miraculous ignorance or hardnesse had the Saxons a people ordained for mercy as the sequell shewed conversed with the Christian Britaines and Picts above 150 yeeres without all touch of their Religion Bed hist lib. 1. cap. 23. Lib. 3. cap. 4. If we then take Austen in his best colour he might be said to bring religion to the South-Saxons after the Roman garbe and his hotest disputes about Easter Tonsure the Roman supremacy and his owne Legatine power Bed hist lib. 1. cap. 27. Lib. 2. cap. 2. and his worthy Queres to the Pope shew he regarded more the fashion then the thing and the fashion of his person more then the worke he pretended for he loved state Greg. Epist l. 7. Epist 13. and to be somewhat like to the Legate of an Univerall Bishop and therefore of a Monke he suddenly becomes a Bishop in Germany before ever he had a Diocesse or saw England Concil Brit. 92. and after he perceived that his worke was like to thrive he returned and was made Archbishop of the Saxons before any other Bishops were amongst them Bed hist lib. 1. cap. 29. and after three yeeres had the Pall with title of supremacy over the British Bishops that never submitted to him His advantages were first his entrance upon Kent the furthest corner of all the Iland from the Britaines and Picts and so lesse prejudiced by their Church-policy and at that very time interessed in the Roman ayre above all the other Saxons for their King had married a daughter of France one that was a pupill to Rome and a devout woman Bed hist lib. 1. cap. 25. Greg. Epist lib. 9. Epist 59. she first brought Austen into acceptance with the King who also at that present held the chiefe power of all the Saxon Kings in this Isle which was now of great efficacy in this worke for where Religion and power flow from one spring in one streame its hard to chuse the one and refuse the other And thus Rome may thank France for the first earnest they had of all the riches of England and we for the first entrance of all our ensuing bondage and misery 2 Thes 2. Austen had also a gift or trick of working miracles wherein whither more suitable to the working of Satan or of God I cannot define It seemes they walked onely in the dark for either the Britons saw through them or saw them not nor could Austen with his miracles or finenesse settle one foot-step of his Church-policy amongst them happily they remembring the Roman Dagon liked the worse of the Roman woman and the rather because the Carriage of their messenger was as full of the Archbishop as it was empty of the Christian I would not touch upon particular passages of action but that it s so remarkable that Austen himselfe but a novice in comparison of the British Bishops the clearest lights that the Northern parts of the world then had and unto whom the right hand of fellowship was due by the Roman Canon should neverthelesse shew no more respect to them at their first solemn entrance into his presence then to vassals as I could not but note the same as a strong argument that his whole work ab initio was but a vapour of Prelacy This the British Bishops soon espied and shaped him an answer sutable to his message the substance whereof was afterward sent him in writing by the Abbot of Bangor and of late published by Sir Henry Spelman as followeth BE it known and without doubt unto you that we all and every one of us are obedient and subject to the Church of God and to the Pope of Rome and to every godly Christian to love every one in his degree in perfect charity and to helpe every one of them by word and deed to be children of God And other obedience then this I doe not know to be due to him whom you name to be Pope nor by the father of fathers to be claimed or demanded And this obedience we are ready to give and pay to him and to every Christian continually Besides we are under the government of the Bishop of Caerleon upon Uske who is to oversee under God over us and cause us to keep the way spirituall This was the Britons resolution and they were as good as their word for they maintained the liberty of their Church five hundred yeeres after this time and were the last of all the Churches of Europe that gave their power to the Roman beast and in the person of Henry the eighth that came of that blood by Teuther the first that tooke away that power againe Austen having met with this affront and perceiving that the Britons were stronger in their faith then he by his miracles cast about to try the Saxons curtesie that what the Ephod could not the Sword wrapt up therein should Bed hist lib. 2. cap. 2. Concil Brit. fo 111. I say not that he procured but he threatned or prophesied the destruction of the Monkes of Bangor and it came to passe and it s by writers loudly suspected Neverthelesse the
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
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
adoration This hath mounted up Kings to the top more then their own ambition and made them undertake what they ought not because we esteem more highly of them then we ought I speak not against due but undue obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion Concil Brit. p. 333. as they did many times and advised others to doe the like Nor had Kings by degrees become beyond controlle and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldnesse to set a Law upon the exorbitancy of their King M. Westm An. 854. as in that case of Aethelwolfe and his Queen amongst others may appeare but that was like some enterprises that owe more to extremity of occasion then to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Free men called anciently Frilingi or free born or such as are borne free from all yoke of arbitrary power and from all Law of compulsion other then what is made by his voluntary consent for all free men have votes in the making and executing of the generall Laws of the Kingdome In the first they differed from the Gauls of whom its noted that the Commons are never called to councell Caes Com. lib 6. nor are much better then servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt Tacitus and therefore those that were elected to that worke were called Comites ex plebe and made one ranke of free men for wisdome superiour to the rest Another degree of these were beholding to their riches and were called Custodes Pagani an honourable title belonging to military service Limb. in 4. fo 71 and these were such as had obtained an estate of such valew as that their ordinary armes were a Helmet a Cote of Maile and a guilt Sword The rest of the free men were contented with the name of Ceorles or Pagani viz. rurall clownes who neverthelesse were the most considerable party both in war and peace and had as sure a title to their own liberties as the Custodes pagani or the Countrey Gentlemen had CHAP. XIX Of the villanies amongst the Saxons THe most inferiour ranke amongst the Saxons were those that of latter times were called villains But those also anciently divided into two degrees the chiefer of which were called Free-lazzi These were such as had been slaves but had purchased their freedome by desert and though they had escaped the depth of bondage yet attained they not to the full pitch of free men for the Lord might acquit his own title of bondage but no man could be made free without the act of the whole body Tacitus And therefore the Historian saith that they are not multum supra servos or scarce not servants They are seldome of account in any family never in any City But in Kingdomes sometimes advanced above the free men yea above Nobles Those are now adaies amongst the number and ranke of such as are called coppy holders who have the priviledge of protection from the Laws but no priviledge of vote in the making of Laws The most inferiour of all were those which were anciently called Lazzi or slaves those were the dregs of the people and wholly at the will of their Lord to do any service or undergoe any punishment Tacitus and yet the magnanimity of the Saxons was such as they abhorred Tyranny and it was rarely used amongst them by beating torture imprisonment or other hard usage to compell them to serve they would rather kill them as enemies and this wrought reverence in these men towards their Lords and maintaintd a kind of generosity in their minds that they did many brave exploits and many times not onely purchased their own freedome but also brought strength and honour to the Kingdome And though the insolency of the Danes much quelled this Saxon Noblenesse yet was it revived again by the Confessors Laws which ordained that the Lords should so demeane themselves towards their men that they neither incurre guilt against God nor offence against the King or which is all one to respect them as Gods people and the Kings subjects And thus much of the severall degrees of men amongst the Saxons being the materials of their Common-weale a modell whereof in the making and executing of the Laws and manner thereof now next ensueth CHAP. XX. Of the grand Councell of the Saxons called the Micklemote IT was originally a Councell of the Lords and Free men afterwards Tacitus when they assumed the title of a Kingdome the King was a member thereof and generally president therein but alwaies intended to be present though actually and in his own person by emergent occasions he may be absent and sometimes by disability of his person he be unmeet to Vote or be President in such an assembly as it was in the Councell at Clano or Cleve in Wiltshire when the great case between the Monks and married Priests was concluded Malmesb. gest Reg. lib. 2. cap. 9. Lib. 5. An. 978. the King was absent as the story saith because of his minority and yet if writers say true he was then in the sixteenth yeere of his age The Lords were also neverthelesse in the same condition of priviledge as formerly and though it appeareth that the Kings had gotten the priviledge of summoning the grand meeting in his own name yet it was by advice of the great men and being met their votes were no other in value then as formerly for all their Laws were ex consilio sapientum and for ought can appeare out of antiquity the vote of the meanest continued as good as of the greatest Tacitus arbitrium est penes piebem And thus the Micklemote or Wittagenmote of the Saxons in England continued in the King Lords and Free men by the space of one hundred and fifty yeeres and in some parts of England nigh two hundred yeeres before ever the Roman Bishops foot entered or the Roman Clergy crept into the Councels of State Afterwards the Prelates were admitted de bene esse for advice as sapientes and continued by allowance how Canonically ipsi viderint for I understand it not especially as the Scripture was then expounded Nemo militans Deo implicet negotiis saecularibus yet if they be allowed what in those daies they ordinarily took up a degree of policy above devotion that knot is also soon untied I say they entered as Sapientes not as Prelati or Church-governours for then they had holden the same power in Church-matters agitated in the Wittagenmot that
they had usurped in their Synods which they held only for Church-visitation which they could never have because the Sapientes regni had their Votes therein as freely as they Nor could the Prelates by any Law entitle themselves to such power or priviledge so contrary to the priviledge of the Wtttagenmote For though it be true that the German Priests had a liberty to be present in these grand assemblies and to have some presidency therein as to command silence c. yet it s no title to these Tacitus unlesse they will interest themselves as their successors to possesse by a jus Divinum that jus Diabolicum which those Priests formerly had in a way of immediate providence somewhat like the possession of the mantle of Eliah found by Elisha They might I grant plead the title from Kings but it must be granted also that Kings as yet had no more power over the Church then in the Common-wealth Nor could they have that from the Lords which the Lords never had but was ever accounted amongst the majora and of which the Wittagenmot had the onely cognisance as it will appeare in some particulars ensuing Unto the King Lords and Clergy must be added as I said the Freemen to make up the Micklemote compleat and though it be true that no monument of story speaks of this grand meeting from their being in Germany untill after the comming of Austin yet when as the Saxon Histories then finde them in the same condition that the German story leaves them it s very probable that in the intervall they continued their wonted custome although they had no Learning to leave monuments thereof unto the world And hereof the examples are not rare in those remembrances that those ancient times have left us For within six yeeres after Austins arrivall Aethelbert cals a Common-councell tam cleri quam populi Concil Brit. 126. Ll. Sax. Lamb. cantab. fo 1. Ibid. fo 22. Ibid. fo 53. Ina after him made Laws suasu instituto Episcoporum omnium senatorum natu majorum sapientum populi in magna servorum Dei frequentia Alfred after him reformed the former Lawes consulto sapientum After him Aethelsian called a Councell in which was the Archbishop and with him the Optimates sapientes frequentissimi besides others whereof I shall treat now that I come to the matters handled in this Court The matters in agitation in the Wittagenmot generally were all both of publique and private concernment That which concerned the publique were such as regarded removall of inconveniences such as are lawes for leagues and affinity with other Nations for preventing of war and thus became the Saxons and Britons united Concil Brit. p. 219. Ll. Lamb. Cantabr fo 36. and the mortall feude between those two Nations laid aside and they made one and the Saxons and Danes reconciled by a covenant agreed unto and sworne between both Nations The like also may be said of their making of war of defence against forrain invasion Matters of publique and general charge also were debated and concluded in that assembly as the payment of Tythes Ll. Edw. Lamb. Cam. fo 139. it s said they were granted Rege Baronibus populo Such also as concerned the Church for so Edwin the King of Northumberland upon his marriage with a Christian Lady being importuned to renounce his Paganisme answered he would so doe Antiq. Brit. p. 51. if that his Queens Religion should be accounted more holy and honourable to God by the wise men and Princes of his Kingdom And all the Church Laws in the Saxons time were made in the Miklemote Monasteries were by their generall consent dedicated Concil Brit. 127. Ibid. 321. their possessions confirmed The City of Canterbury made the Metropolitane matters also of private regard were there proceeded upon as not onely generall grievances but perverting of justice in case of private persons as in that Councell called Synodale concilium under Beornulfus the Mercian King Ibid. 332. quaesitum est quomodo quis cum justicia sit tractatus seu quis injuste sit spoliatus The name of which Councell called Synodall mindeth me to intimate that which I have often endeavoured to finde out but yet cannot viz. that there was any difference between the generall Synods and the Wittagenmot unlesse meerly in the first occasion of the summons And if there be any credit to be allowed to that booke called Cap. 1. Sec. 3. The Mirror of Justices it tels us that this grand assembly is to conferre of the government of Gods people how they may be kept from sinne live in quiet and have right done them according to the Customes and lawes and more especially of wrong done by the King Sec. 2. Queen or their children for that the King may not by himselfe or Justices determine causes wherein himselfe is actor Cap. 4. Sec. 11. and to summe up all it seemeth a Court made to rise and stoop according to occasion The manner of debate was concluded by vote and the sum taken in the grosse by noise Tacitus Plut. Lycurg Thucyd. lib. 1. de Lacedem like to the Lacedemonians who determined what was propounded clamore non calculis yet when the noise was doubtfull they tooke the votes severally The meeting of the Saxons at this assembly in the first times was certaine Tacitus viz. at the new and full Moon But Religion changing other things changed these times to the Feasts of Easter Pentecost and the Nativity at which times they used to present themselves before the King at his Court for the honour of his person and to consult and provide for the affaires of his Kingdome and at such times Kings used to make shew of themselves in their greatest pompe Crowned with their Royall Crown This Custome continued till the times of Henry the second An. 1158. who at Worcester upon the day of the Nativity offered his Crown upon the Altar and so the ceremony ceased This grand Assembly thus constituted was holden sacred and all the members or that had occasion therein were under the publique faith both in going and comming unlesse the party were fur probatus If a member were wronged the delinquent payed double dammages and fine to the King by a Law made by Aethelbert above a thousand yeeres agoe Concil Brit. p. 127. Ll. Canut p. 2. cap. 79. Ll. Edw. cap. 35 This priviledge of safe passe being thus ancient and fundamentall and not by any law taken away resteth still in force But how farre it belongeth to such as are no members and have affaires neverthelesse depending on that Court I am not able to determine yet it seemeth that priviledge outreacheth members unlesse we should conceit so wide that the state did suppose that a member might be a notorious and known thiefe Lastly this assembly though it were called the Wittagenmot or the meeting of wise men yet all that would come might be
which we call suite of Court The Court of Free men was holden from three weeks to three weeks wherein the free men Miror p. 17. Lind. gloss Albin hist Saxon. p. 72. as in the Hundred and County were Judges of the fact and from them named as at this day Court leete or the Court of the Liti or such as are manumitted or free men In this Court all actions or suits between the free men of the same Manor and within the same arising were determined nor could any Court no not the Kings intermeddle with such suits before triall had but by the Lords allowance And upon this priviledge the Writ of right patent was grounded But the full nature of this Court is not within my intention but I must referre the Reader to the Law-bookes F. N. Br. 2. For it was the least part of the worke and power which this Court obtained by continuance of time in regard that manors exceedingly multiplied so as no part of the Land was left free and many one of them extended into divers Decennaries the Lords obtained great power over them View of Frankpledge and had of Kings grants of view of Frankpledge within their severall Lordships and further power of inquiry and punishing of matters of publique nusance and such as were contra pacem coronam which by custome became annexed unto the Court-leete The nusances of Copy-holds being done to disherison of the Lord and not proper for the Court of publique inquiry The Judge of this Court-leet was the Lord or his Steward for the directory part and the Steward was properly Coroner within the Manor to take presentments and certifie them to the Coroner of the County And thus this Court swallowed up much of the power of the Decenners Court in the very infancy so as we finde no footsteps of any Writ of Right to the Decenners or chiefe pledges but contrarywise many views of Frank pledge granted to particular persons in the time of Alfred Miror cap. 5. Sec. 1 and many things done by the chiefe pledges in the Courts of these Manors as is to be yet seen in many ancient Court Rols The other Court which by common right belonged to the Lords of Mannors was that of the Copyholders Court Baron called or rather included under the name of the Court Baron which albeit it is called in the ordinarily stile Curia Baronum yet not so properly as I conceive Co. Instit cap. 57. and it may be by way of mistake for Baronis for if it were so properly united formerly to the Court of Free men as ab excellentiori it alwaies passed under that name yet when that Court is omitted and slipt out of the way the Court of Copyholders that remaineth improperly retaineth the name of that which is gone This Court at the first was intended onely for the Lords benefit and for the Tenants right as subservient thereunto I say the Tenants right not against their Lord for they had no right against him but against any other they had protection of Law both for themselves and their estates and as I said before by custome or rather light of Religion their persons and estates were considerable even by the Lords themselves which also caused a Law to be made ut sic de suis hominibus agant quatenus erga Deum reatum non incurrant Regem non offendant Ll. Edw. which law could never be intended of the free holders for it had been a vain redundancy to have made an especiall Law for that which was provided for by the known fundamentall Law of the Kingdome against which a speedy remedy lay by the Kings Writ And that these men how mean soever had even in those daies a kind of property both in Lands and goods for the Laws though by their antique language darkned Selden Spicil 184. cap. 33. yet plainly speak de terra sua Catallis ejus and if the ancient Germans were so generous to their bondmen surely much rather after their comming into this Island in as much as their service was more and more necessary in agriculture which could never be performed by the natives who were not in their own persons conquered although their land was CHAP. XXXIII Of Townships and their Markets THe next Franchese is that of Towns this was taken up as a birth of warre and nurse of peace for their ancestors liked not to dwell in crowds Tacitus ne pati quidem inter se junctas sedes it being their trade or pastime to warre upon beasts when they found no enemies amongst them This solitudinary custome could not be soon shaken off and might well occasion multitudes of Towns in those times though small ones doubtlesse that writers speake of if true it be that after the wasting times of the Danes and Normans in the Conquerours time were found in England forty five thousand Parishes and sixty two thousand Villages Nor was peace lesse beneficiall to them then they carefull of it for by continuance of peace Husbandry Manifactures and Commerce occasioned people to gather to places commodious for habitation in good soile nigh navigable Rivers or Havens and according to their scituation and trade so they swelled in multitude or decayed some of whom growing more eminent then others more care was had of their government and safety for the later by building of Wals and Castles and for the former by setling a Magistracy peculiar to that place or Township not as so many Decenners but as one body consisting of many members and thus by custome they grew to be Fraternities or Corporations under one Magistrate or head whom they called Alderman and held a Court of Justice at the first holden twice a yeere which was in nature of a Leet with a view of Frank pledge Ll. Canut cap. 44. Miror cap. 5. Sec. 1. Markets as may appeare in the cases of Dorcester Circeter and Doncaster in Alfreds time and herewith they had publique markets which served them for their better convenience This priviledge of Market was a liberty of publique sale and trade in commodities that principally concerne the belly but by common course became a passe for commodities of every kind almost Concerning this liberty I shall desire leave to enterpose this parenthesis ensuing before I proceed in the intended discourse In the first times as every man by common right had property in his own goods so by the same right he had power to alien them to any person at any time in any place by gift sale exchange or other waies and that by such alienation but especially by sale a right was vested in the buyer against all men saving the Eignee right which was recompenced upon warranty and recovery in value and in those daies common sence taught men to buy or sell of or to the next neighbour that would bargaine with them and for want of such occasion to repaire to the next assembly
meeting or concourse of people for the sale of such commodities as their neighbourhood would not take off their hands And thus the greater Towns that had walls or Castles became the greatest Markets and others lesse and this made the neighbourhood of those Towns to repaire thither to buy as others to sell But time discovering a double inconvenience herein viz. that by these lesse publique sales in smaller Villages where little or no care of right or justice was had and by which means the word Pagan became a word of reproach many mens goods by clandestine contracts were lost and no care had of their recovery and which was yet more prejudiciall to the publique that the greater Towns appointed for the strength and defence of the Kingdome became ill provided with supply of victuall either for the present or future and what was had for the most part was gotten at the second hand and higher rate then the Countrey Villages had The wise men by publique edict laid a restraint of Markets in smaller Villages and more private places and thus the greater Towns having Markets formerly became more publique Markets not by any new right or priviledge from the Crown for it neither had such power nor could have but upon usurpation against the common right of such Towns and places of publique defence This restraint upon the reasons aforesaid was made first in the Saxon times as may appeare by their Laws but more clearly declared and confirmed afterwards by the Laws of the Normans which never gave any new right of Market overt unto those places of publique defence but onely did inhibit the same in the smaller Villages and private places In which respect although the Kings of this Nation in future times tooke leave to abolish that restraint which did lie upon some of those more private places for certaine reasons of State and so these places became Markets overt which formerly were none yet could they never take away that priviledge which nature it selfe cast upon those greater Towns being the very limbs of the Kingdome without wrong done to common right and the publique good nor abridge them of that power but that they might still use their liberty at times and places within their precinct as might best conduce with the benefit of the inhabitants of those places even as any particular free man may govern his own estate as him liketh best And thus upon the whole matter it s to be concluded that the ancient Burroughs of this Kingdome properly doe not hold their liberty of Market overt by prescription or charter but by common right and not as a Corporation made by charter but as they are a multitude of people anciently gathered together and united upon whom the strength and wealth of the Kingdom doth or did formerly much more depend then on any of the smaller Villages open Towns even as every free man possesseth and useth his proper inheritance and estate without particular priviledge derived from the Crown nor can the King take away the liberty of Market overt from such places more then he can take away the liberty of buying and selling from any free man to whom the Law alloweth a liberty of ownership This I submit to the censure of the learned in the Laws in regard of the different opinions concerning the same This liberty of Township thus made and the place and people inhabitants thereof being of such consequence in the publique administration had for their better support and safety liberty of Fortification Ll. Edw. cap. 1. Ll. Aethelst cap. 12. Ll. Aethelst cap. 13. Gloss and power to charge one another with the maintenance of these Fortifications by an imposition called Burghbote and held their Tenements under a rent to their Lord or King called Burgage as they were a body aggregate CHAP. XXXIV Of the Forrests BEsides other prerogatives of the Saxon Kings they had also a Franchise for wild beasts for the Chase which we commonly call Forrest being a precinct of ground neither parcell of the County nor the Diocesse nor of the Kingdome but rather appendant thereunto This savoured of the old German sport but by custome turned from sport to earnest For although in the first times the Saxons were so few and the Country so spacious that they might allow the beasts their farme as well as themselves their own People neverthelesse so multiplyed as of necessity they must intercommon either with Beasts or Fishes the former whereof however more cleanly yet the latter had the surest footing and was chosen as the least of two evils rather then for any likelyhood of good neighbourhood for as nature taught beasts to prey for themselves so men to defend their owne and this bred such a fewd between beasts and men as that Kings doubting to loose their game tooke in with the weaker that the world might see the happinesse of England where beasts enjoy their Liberties as well as men But this was as it were by compromise for it had been very hard to have pleased the free men who had liberty of game within their own ground by common right Ll. Canut c. 77 and to preserve the Kings liberty of Forrest coincident therewith had not the King imployed on the one side the power of a Dane that looked somewhat like a Conquerour and on the other side that which looked as like to the bounty of a King in allowing liberty of ownership to men inhabiting within the bounds of the Forest which at the first was set apart onely for the Kings pleasure and all his wits to make a Law somewhat short of a full freedome and yet outreaching that of bondage which we since have commended to posterity under the Forrest charter and yet for all that it proved a hard matter for Kings to hunt by Law and the Law it selfe a yoke somewhat too heavy for a Common-wealth to beare in old age if selfe denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of justice THus farre of the severall Tribes and members of this Commonweale which like so many Conduit heads derived the influence of government through the whole body of this Island and in every of which Judiciary power acted it selfe in all causes arising within the verge of that precinct some of which had more extraordinary triall before the King and his Councell of Lords according as the parties concerned were of greater degree or the cause of more publique concernment Examples hereof are the cases between the Bishop of Winchester and Leoftin in Aetheldreds time and between the two Bishops of Winchester and Durham in Edwards time but custome made this Court stoop to smaller game in latter times and to reach at the practise of the County court by sending the Kings Writs to remove certaine causes from the cognisance of those rurall judicatories to their sublime determination Glanvil lib. 6. cap. 6 7 8. And thus became the Councell of Lords as an Oracle to
Lindenbr tit 36. three Summons went forth in the Hundred court and if default were made complaint thereof ensued in the County court and thence issued forth a distringas and if the defendant still persisted in declining his appearance the distresse was forfeited and a summons issued upon the Land if then the defendant would not appeare or upon appearance would not give pledges to abide judgement his whole land was seized for the benefit of the King the Lord of the Hundred and complainant because he had offended against all three But if the party appeared in former times he answered forthwith and judgement passed without delay as hath been said unlesse in urgent cases where the matter was raw and then it was adjourned and pledges given by the defendant to the full value Ll. Edgar c. 7. after the custome of the Athenians and if the defendant made default at the day his pledges were forfeited But in after times for better and more advised proceeding the defendant was admitted to his Essoines yet with a proviso Miror cap. 5. Sec. 1. that no Essoine should be allowed for above fifteene daies and this was the direction of King Alfred In the answer of the defendant he either traversed the matter in fact Miror cap 3. Sec. 16. or confessed and justified or confessed and submitted The first put the matter to the judgement of the free men the second to the judgement of the Judge the third to the discretion of the complainant whereby the defendant generally found mercy and in case of trespasse rendred lesse dammage I finde no footsteps in those times of Dilatory pleas or demurrer or other delays unlesse in case of infancy for the Saxons knew no other age of ability to doe or suffer Lindenbr gloss Miror cap. 5. Sec. 1. but the age above one and twenty yeeres and in Alfreds time a Judge suffered death for passing sentence of death upon one under that age albeit the Canonists had in those daies brought into custome other ages of ability in matters concerning marriage although it may well be thought that it requireth no lesse maturity to manage the affaires of a married life then to discerne the nature and difference of manners especially in case of crimes which are contrary to the very light of nature CHAP. XXXVII Of the severall manners of extraordinary triall by Torture Ordeale Compurgators and Battaile EVidence of the matter in fact upon triall of causes in the Saxon judicatory sometimes consisted in the pregnant testimony of the fact it selfe Torture and sometimes in the testimony of some circumstances The first was an unquestionable ground of conviction the second was too weake to command the Verdict although sometimes it perswaded it and therefore those incompassionate times found out a tricke of extorted confession by torture of the party following the principles of passion therein rather then sober judgement for circumstances are sufficient to irritate the hearts of those that are passionate and where jelousie is once entered there 's no place for sparing be the matter never so untrue yet I doe not finde any Law amongst the Saxons to patronise this fashion of conviction albeit it seemeth it was practised for Alfred the King punished one of his Judges with death for passing sentence upon an extorted confession by torture before the Coroner Miror cap. 5 Sec. 1. Cragius and possibly it might be gained from the Lacedemonians although little to the praise of their Greekish wisdome in that particular Seeing that in all reason it must be supposed that feare and griefe will enforce flattery upon the tormentor as well as selfe love draw forth flattery to the benefactor A second sort of evidence was that of Ordeale Ordeale being also grounded upon a preconceit or suspition the manner hereof was divers The thing seemeth to be the birth of the braine of some Church-man who had read of the accursed water The first mention that I finde thereof was at the Councell of Ments An. 813. An. 895. and afterwards in the Councell of Triers but not a footstep thereof in this Kingdome till by Aethelstan it was advanced into the degree of a Law Ll. Aethelst Can. 23. An. 928. after which time it continued in use well nigh three hundred yeeres A strange monument of Gods indulgency to an ignorant age thus turning extraordinary to ordinary for the clearing of innocency and which is no lesse wonderfull allowing in those times unto men under nature such a power over themselves as to adventure against nature Doubtlesse that man or woman was of a daring spirit that first tried the tricke if he had not a miraculous faith in that promise Cum ambulaveris per ignem Isa 43.2 c. and it shewed mettall in them that followed the example but the next age grew dull and men being weary of such bane touches the Clergy that cryed it up their successors cried it down and so devoured their own birth without any difficulty other then a bare injunction of a King that had power to command onely such as would obey Spicil Selden But where fame was yet more slight Compurgators and springing rather from want of charity and misapprehension then promising circumstances men were wont to be contented with a voier Dire or the oath of the party suspected and the concurrant testimony of other men the first attesting his own innocency the other contesting their consciences of the truth of the former testimony and therefore were and still are called compurgators their number was more or lesse and of greater or lesse value according as the offence or the party suspected was of greater or lesse concernment Ll. Edm. c. 16. This manner of triall was of ancient use and both it and that of Ordeale under the directory of the Clergy yet this was the ancienter by three hundred yeeres and first brought into this Nation by the Councell at Berghamsted under Bertwald Archbishop of Canterbury An. 647. And it was performed sometimes more solemnly by solemn receiving of the Eucharist Ll. Canut cap. 5. especially if the party suspected was of the sacred Function Battaile One manner of triall yet remaines which was used both in triall of matters of crime and title and it is the triall by battaile which was in criminall matters with sharpe weapons but in titulary matters with blunt weapons No defendant could refuse battaile offered but such as were too excellent as the King or too sacred as the Clergy or too weake as women maimed persons and children or too inscient as Idiots and Lunaticks or too mean as villains And as these were not necessitated to answer in battaile so was no free man compelled to answer them by battaile Miror cap. 2. Sec. 13. This way was an old way as may appeare by the conclusion of appeales and seemeth more satisfactory then that of Ordeale because this rested upon the consciences both of
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
which as some thinke was made advantagiously for the Pope himselfe in point of tenure but more probably in the covenants For the Conquerour was scarce setled in his seat but the Canon law began to speak in the voyce of a Royall law Spicil 167. Fox Mart. l. 4. First complaining of mis-government as if the Church were extreamly wronged by having the same way and law of triall with the Commons of England and then propounds foure severall expedients enough to have undone the whole Common-weale in the very entrance had not the superstition of those times blinded both Parliament and people and rendered them willing with that which their successors in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon law Church matters had the preheminence both in the Hundred and in the County and it was the Bishops duty to joyn with the Sheriff in those Courts to direct and see to the administration of justice and yet the Canon had been above three hundred yeeres foregoing in the negative No case concerning the Regiment of soules shall be brought before the secular Judge The Regiment of soules was a common place sufficient to containe any thing that was in order thereunto and so every one that hath a soule must be no more responsall unto the temporall Judge for any matter concerning it but unto the Ecclesiasticall power and this not onely in case of scandall as against the morall law or rule of faith but for disobedience done to the Canons made afar off concerning any gesture or garbe that may come within the savour of an Ecclesiasticall conceit That all delinquents against the Bishops laws shall answer the fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the triall of such matters shall be according to the law of the Canon and not according to that of the Hundred That is not by Jury but by witnesses in a clandestine way if the Bishop please or without any accuser or by more scrutiny or any other way that may reserve the Lay man to the breast of a prepossessed spirit of the spirituall Judge And thus the poore Countreyman is exposed to the censure of an unknown law in an unknown tongue by an unknown way wherein they had no footing but by an implicite faith And herein the providence of God I imagine was more manifest then the wisdome of man which was too weake to foresee events at so great a distance For questionlesse it was a point of excellent wisdome for the people now under a King of a rugged nature that would not sticke to catch whatsoever he could get to deposite part of their liberties into the hands of the Clergy from whom moderation might be expected as from friends and neighbours and as partners in one ship mutuall engagement to withstand the waves of prerogative of Kings that seldome rests till it breaks all banks and sometimes over-reaches its own guard and cannot return when it would And thus it fell out for many times the Pope and Clergy became protectors of the peoples liberties and kept them safe from the rage of Kings untill the time of restitution should come and became not onely a wall of defence to the one but a rock of offence to the other For the Tripple Crown could never solder with the English nor it with that the strife was for prerogative wherein if the Clergy gained the Crown lost and no moderation would be allowed For the conquering King was scarce warm in his Throne when as the Pope demanded fealty of him for the Crown of England Spicil 164 Baronus Anal. An 1068. and the Kings own good Archbishop and friend Lanfranke delivered the message as also Anselme did afterwards to William Rufus which though Kings had courage enough to deny yet it shewed plainly that the Popes meaned no lesse game then Crown-glieke with the King and people the Archbishops and Bishops holding the Cards for the Pope while in the interim he oversaw all The Norman Kings thus braved payd the Popes in their own Coyne and refused to acknowledge any Pope but such as are first allowed by their concurrance Edmer hist l. 1. p. 25. Thus have we the second bravado of the Canon Law for as yet it was not so fully entered as it seemed The words of the act of Parliament its true were generall yet their sence was left to time to expound and the course of succeeding affaires neverthelesse passed with a non obstante For whereas in those daies the Clergy claimed both legislative and executory power in Church matters the Normans would allow of neither but claimed both as of right belonging to the Imperiall power of this Island originally and onely As touching the legislative power its evident that notwithstanding the Canon that had long before this time voted the Laity from having to doe with Church matters yet the Norman Kings would never allow to the Metropolitans the power of calling Synods nor such meetings Edmer hist p. 6. 24. Spicil 163. but by their leave although it was earnestly contended for Neither could the Clergy prevaile to exclude the Laity out of their Synods being assembled nor from their wonted priviledge of voting therein albeit that for a long time by Canon it had been contradicted The differences between the Clergy and the Kings concerning these and other matters grew so hot that Kings liked not to have any Synods or meetings of publique Councell Epist ad Pascal pap and Archbishop Anselme complained that William Rufus would not allow any to be called for thirteen yeeres together which by the file of story compared with that Epistle made up the kings whole Reigne And this was questionlesse the cause that we finde so little touch upon Parliamentary assemblies in the Norman times Kings being too high to be controlled and Bishops too proud to obey But necessity of State like unto fate prevailes against all other interests whatsoever and the wisdome of Henry the first in this prevailed above that of his predecessors as farre as their will was beyond his For it was bootlesse for him to hold out against the Church that stood in need of all sorts to confirme to him that which common right as then it was taken denied him and therefore though it cost him much trouble with Anselme he recontinued the liberty of publique consultations and yet maintained his dignity and honour seemly well I shall not need to cleare this by particulars for besides the publique consultations at his entrance and twice after that for supply or ayd for his warres and the marriage of his daughter with the Emperour it s observed that the Archbishop of Canterbury
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
law of Henry the first concerning the County court which reciteth it as a custome in his time used Ll. Hen. 1. c. 7. that the Bishop and Earles with other the chiefe men of that County were there present as assistants in directory of judgement And that in order are handled first matters of the Church Secondly Crown pleas Thirdly and lastly Common pleas however therefore the King spake faire they either acted not at all or so cooly as the current of the custome was too strong but most probable it is that the Kings spake faire till they were setled in their Thrones and afterwards pleased themselves for by the generall thred of story it may appeare that the Clergy in those times were more feared then loved and therefore riden with a streight reine The Prelacy on the contrary grew unruly yet too weake for the rugged spirits of the Norman Kings they are glad to be quiet and the Pope himselfe to drive faire and softly as judging it expedient potestatem Regalem mitius tractandam Greg epist l. 9. and continued that course and posture till the calmer times of Henry the first Eadmer hist l. 4 p. 95. wherein they mended their pace and got that without noyse which they had long striven for viz. the preeminence and presidency in the Synods though the King himselfe be present and if the Historian writeth advisedly the whole ordaining or legislative power for so runnes the stile or phrase of the author Archiepiscopi Episcopi statuerunt in praesentia Regis as if the presence of the King and his Barons and people were but as a great Amen at the common prayer after the old stampe to set a good colour upon a doubtfull matter to make it goe down the better How the Kings brooked this draught I cannot say but it hath made the kingdome stagger ever since and it may be feared will hardly recover its perfect wits so long as the brains of the Clergy and the Laity thus lie divided in severall Cels. CHAP. XLVIII Of the severall subservient jurisdictions by Provinces Marches Counties Hundreds Burroughs Lordships and Decennaries HAd the Normans owned no other title then that of Conquest doubtlesse their mother wit must needs have taught them the expediency of preserving the particular subservient jurisdictions of the kingdome intire and unquashed if they regarded either the benefit of their conquest or reward of their parteners and allies unlesse it should be allowed unto Conquerous to be more honourable for them to doe what they will rather then what is meet But hereof there is no cause of queston in this present subject for nothing is more cleare then that VVales enjoyed in the Conquerours time and for ages after him its ancient liberties Tribute excepted nor did conquest ever come so nigh to their borders as to trench upon the liberties of the Marches For as it had been a piece of state nonsence to have holden two peoples under conquest and their Marches in freedome or to preserve them in good neighbourhood by Marches which by the law of Conquest were made one so was it no lesse vaine if all had been once subdued by conquest to have raised up the liberties of the Marches any more And as they had lesse cause to have invaded the bounds and ancient limits and partitions of the Counties County courts so questionlesse had they so done they would have taken the old course of the Micklemote Eadmer hist l. 4. p. 96. as they did divide the Diocesse of Lincolne into two Diocesses by advice of the Bishops Princes and other wise and holy men Ll. Hen. 1. c. 6. and turned the Abby of Ely into a Bishops See But it was their wisdome to preserve the ancient Land-marks and no lesse both wisdome and care to continue their due priviledges and interests to each Every County had its Court Ll. Gulielm cap. 41. 42. and every Court its wonted jurisdiction No complaint must be to the Kings Court if right may be done in the County no distresse must be taken but by warrant from the County and that must be after complaint thrice made The County court must be called as our ancestors have appointed Ll. Gulielm cap. 64. such as will not come as they ought shall be first summoned and in case of default destrained at the fourth default the complainant shall be satisfied out of the distresses so taken and the King also for his fine These are the expresse Laws of the Conquerours own establishment Ibid. c. 64. the last of which also was confirmed by another expresse Law saving that he would allow but of two summons and two distresses before execution And as it was one principall worke that he undertooke to reduce the Lawes into course which had been intermitted during the violent times of his father and brother the first of whom never had liberty for reformation and the latter never had will so amongst other Laws he setled those concerning the County court Ll. Hen. 1. c. 7. namely That the Bishops Earles and chiefe men should be present for direction 2. That it should be holden once each moneth 3. That the Church matters should precede and then the Crown pleas And lastly the Common pleas besides some other particulars concerning pleading and proceedings in the handling of causes Neither were these causes of a petty regard onely but of greatest concernment One example I shall remember the reader of Epicil 197. and not recite in terminis but referre to Mr Seldens own pen. The occasion was this Odo the Conquerours halfe brother was by him made Earle of Kent and therewith had the gift of a large Teritory in Kent and taking advantage of the Kings displeasure at the Archbishop of Canterbury Stigand possessed himselfe by disseisin of divers Lands and Tenements belonging to that See Lanfrank the succeeding Archbishop being informed hereof petitioned to the King that justice might be done him secundum legem terrae And the King sends forth his Writ to summon a County court the debate lasted three daies before the free men of the County of Kent in the presence of many chiefe men Bishops and Lords and others skilfull in the Laws and the judgement passed for the Archbishop Lanfrank upon the votes of the free men This County court was holden by speciall summons and not by adjournment as was allowable by the Saxon Law upon speciall occasions And this suit was originally begun and had its finall determination in the County court and not brought by a Tolt out of the Hundred court as is supposed by an Honourable reporter nor by the ancient laws could the suite commence in the Hundred because the Lands and Tenements did lie in severall hundreds and Counties The upshot of all is that the County courts in those daies were of so great esteem that two of the greatest Peeres of the Realme one a Norman the other an Italian did cast a title
rules for government I remember it s affirmed by some of those ancient Writers that the Duke or King would have brought in the customes of Norwey but the earnest mediation of the English prevailed against it and it evinceth two things to my opinion first that there was question made what law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdome they could not prevaile to bring in the whole body of their law or of the customes of Norwey which were not onely the prima materia of their law but also in kind had a setling at that very time in those places of this Kingdome where the Danes had their principall seate and therefore not altogether strange to the Saxons themselves The summe of which will be this that upon debate a law must be setled and that not the law of the Conquerours own will nor the law that suits with his desire but the ancient law of the Kingdome and therefore if at any time the unquietnesse of some of the English brought the King to some thoughts of arbitrary rule and to shake off the clog of Saxon law it was long ere it stirred and sprang up too late to raise the title of conquest and withered too soon to settle it As touching the change of customes for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour tooke away the custome of Gavell kinde and brought the custome of discent to the eldest sonne and that Kent saved their liberties and continued this custome of Gavell kinde I shall not contend about the liberties of Kent but must till I see better reason hold the opinion of the change of inheritance to be a meere conceit For besides what hath been already said concerning that custome of Gavell kind if we believe Glanvile the difference was between Lands holden by Knights service Lib. 7. cap. 3. and in socage the first of which in his time by ancient custome alwaies descended to the eldest and those Lands that were holden in Socage if not partible by custome in which case they went equally to all the sonnes went by custome in some places to the eldest in other places to the youngest so as the rule of inheritance in the Norman times was custome as well as in former times And furthermore if the custome of Gavell kind had been the generall custome of this Nation the King by his change had contradicted his own Prerogative and granted as great a liberty to his subjects as could have been invented For had the custome of Gavell kind happened upon the Lands in Knight service it had brought all the sonnes under the law of Wardship and had made a ready way to inthrall all men of worth and undoe all husbandry the first whereof had been as advantagious to the Kings private interest as both destructive to the publique Nor is it cleare from any Authour of credit that the Normans changed the tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what tenure he pleased for as well before the Normans time as long after tenures were like as the services were all at the will of the donor and were of as many individuals almost as the minds of the owners some being of more generall regard and publique use Littlet are recorded amongst the grounds of English laws none of which appeare to me to be of Norman originall although they received their names according to that dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute tyrant and to publish laws in a forreigne language that the people through ignorance might the rather transgresse and thereby forfeit their estates This if true so far differed from the nature of a Conquerour as rather proveth that he was put to his shifts Neverthelesse the thing tasteth so much of spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conquerour to entitle himselfe by a cheat where he hath an elder title by conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continuall view of publique affaires in those times who speaking of the Conquerour saith That he commended the Confessors laws to his Justices in the same Language wherein they were wonted formerly to be written Ingulfus lest through ignorance the people might rashly offend And another Authour saith M. Paris fragm Gulielm that the King had a desire to learn the English tongue that he might the better know their Law and judge according thereto It s probable neverthelesse that the laws were in the Norman tongue and it s no lesse likely that the pleadings in reall actions especially were also in the same Language else must the Normans be put to schoole to learne English upon perill of losse of their estates but that either the written laws were wholy concluded into the Norman Tongue or that the publique pleading of causes by word of mouth in all actions where the issue was left to the Countrey were in any other Language then English no advised Reader will conceive seeing it had been a madnesse for an English Jury to passe their verdict in any case wherein its likely many of them understood scarce a syllable of the Norman language much lesse ought of the matter upon which their verdict should be grounded Adde hereunto that it s not likely but the Conquerour inhibited the use of the English language in all matters of publique Record in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon more generally in the Latine but seldome or never in the Norman dialect and that pleadings and indictments were entered in like manner in the Latine Tongue as formerly by an old custome brought in by the Clergy was used for the Clergy who had gotten the Key of knowledge and Law into their own custody layd it up in that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for justice as well as for piety The Normans therefore either found it too hard to alter the former custome in such cases or else thought it the wisest way to choose the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any forreine Tongue besides and yet endeavoured to bring both peoples into one Language as they were intended to be one people and to presse the use of the Norman Tongue in publique affaires so farre as might consist with good government and justice leaving
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
voting without impeachment CHAP. LIX Of the state of the Clergy and their power in this Kingdome from the Normans time IF the prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much lesse in these times succeeding wherein the Clergy tooke up the Bucklers and beate both King and Commons to a retreat themselves in the interim remaining sole triumphers in the field In their first adventure they paced the stage no man appearing to oppose Steven then was King by their leave and their Bondservant and they might have any thing sobeit they would suffer him to enjoy his Crown His brother the Bishop was the Popes servant the Churchmens patron and the Kings surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better title then election conscience in those times was well enough satisfied in the breach of covenant on their part where on the Kings part it was first broken All this the King saw full well and therefore what can he deny to such benefactors Vacances of Churches he readily parts with and his right of investure of the Mitred Clergy he dispensed so as he opened the way to his successors of an utter dereliction of that priviledge He sees his brother the Legate deflower the Crown of England by maintaining appeales from the Courts in England unto the Court of Rome and he says nothing he is contented with the stumpe of the Crown and with Saul if he be but honoured above or before all others of the people it s his enough But the Clergy like the barren wombe hath not yet enough The King hath allowed them Castles and too late he sees that instead of being defencas against the Imperiall power of the Empresse they are now made bulwarkes against the lawfull power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himselfe is now summoned to answer this before a Legatine councell wherein his brother is President that was a bold adventure in them but it was extreame rashnesse in him to appeare and plead the cause of the Crown of England before a Conventicle of his own subjects And thus to secure Rome of supremacy in appeales he suffers a recovery thereof against his own person in a court of Record and so loses himselfe to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner the Empresse perceiving the power of the Clergy betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospell were now under their decree publish that the election of the King belongeth unto them and by them the Empresse is elected Queen in open Synod Stevens brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange president in the English government for posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the kings return unto his Throne again wherein he continued a friend to the Clergy during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in title and power and one that came to the Crown without preingagement by promise or Covenant saving that which was proper for a King A man he was that knew full well the interests in the government the growing power of the Clergy and the advantages lost from the Crown by his predecessor and to regaine these he smoothes his way towards these braving men speaks faire proffers faire M. Paris An. 1155. he would act to increase the bounds of the Church he would have the Popes leave to doe him a kindnesse and sobeit he might gaine an interest in Ireland he would take it from the Pope who pretended as heire of Jesus Christ to have the Islands and utmost parts of the earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Popes kindnes for the confirmation of the liberties and customs of his Crown and kingdom and no sooner desired then obtained This was the 2d example of a King of England but the first of an English king that sought to Rome for right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple crown Nor was Henry the second lesse benigne to the Church-men till he found by his deere bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himselfe as in that shamefull successe of the death of Becket may appeare wherein he yeelded the day up to the Clergy who formerly scorned to stoop to the greatest Potentate on Earth The state of Kings is to be pitied who must maintaine a politique affection above and sometimes against nature it selfe Constit at Clarindon if they will escape the note of tyranny in their undertakings and of a feeble spirit in their sufferings For the King having made Becket Chancellor of England then Archbishop of Canterbury he became so great that his fethers brushed against the Kings Crown who begins to rouse up himselfe to maintaine his honour and prerogative Royall The Bishops side with Becket the King intending the person and not the Calling singles out the Archbishop and hunts him to soile at Rome yet before he went the King puts the points of his quarrell in writing and made both Archbishop and Bishops signe them as the rights of his Crown and as the Consuetudines Avitae but Becket repenting went to Rome and obtained the Popes pardon and blessing the rest of the Bishops yeelding the cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then overspread the body of the Clergy in those daies and therefore I shall summe them up as follows cap. 1. Rights of Advousons shall be determined in the Kings Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergy Before the Normans time the County courts had them and there they were determined before the Bishop and Sheriffe but the Ecclesiasticall causes being reduced to Ecclesiasticall Courts and the Sheriffe the Laity sequestred from intermedling the Normans according to the custome in their own Country reduced also the triall of rights of Advousons unto the Supreame courts partly because the Kings title was much concerned therein and the Norman Lords no lesse but principally in regard that Rights require the consideration of such as are the most learned
withstood all though he had twice consented and once subscribed to them Constit at Clarindon having also received some kind of allowance thereof even from Rome it selfe cap. 12. Clergy men holding per Baroniam shall doe such services as to their tenure belong and shall assist in the Kings Court till judgement of life or member Two things are hereby manifest First that notwithstanding the Conquerours law formerly mentioned Bishops still sate as Judges in the Kings courts as they had done in the Saxon times but it was upon causes that meerly concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spirituall Courts and not the Clergy out of the Lay courts Secondly that the Clergy especially those of the greater sort questioned their services due by tenure as if they intended neither Lord nor King but the Pope onely Doubtlesse the use of tenures in those times was of infinite consequence to the peace of the kingdome and government of these Kings when as by these principally not onely all degrees were untied and made dependant from the Lord paramont to the Tenant peravale but especially the Clergy with the Laity upon the Crown without which a strange metamorphosis in government must needs have ensued beyond the shape of any reasonable conceit the one halfe almost of the people in England being absolutely put under the dominion of a forraine power Sanctuary shall not protect forfeited goods cap. 13 14. nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened with out Licence Constit at Clarindon cap. 15. It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without licence or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Churchmen to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into Monastery without the Lords consent cap. 16. Upon the same ground with the former for the Lord had not only right in his tenant which could not be aliened without his consent but also a right in his tenants children in regard they in time might by descent become his tenants so lie under the same ground of law for although this be no alienation by legall purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affaires These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last but their Captaine Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Samson like effected more then his life for the maine thing of all the rest the Pope gained to be friends for the losse of so great a stickler in the Church affaires as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishop espied a muse through which all the game of the Popedome might soon escape and the Pope be left to sit upon thornes in regard of his authority here in England For let the Metropolitane of all England be a sworne servant to the Metropolitane of the Christian world and the rest of the English Bishops not concur it will make the tripple Crown at the best but double Antiq. Brit. 302. F xe An. 1179. Alexander the Pope therefore meaned not to trust their faire natures any longer but puts an oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceale their counsels 4. To ayd the Roman papacy against all persons 5. To assist the Roman Legate 6. To come to Synods upon Summons 7. To visit Rome once every three yeeres 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their estates bodies and soules unto her service that which remaines the King of England may keepe And well it was that it was not worse M. Paris An. 1167. considering that the King had vowed perpetuall enmity against the Pope but he wisely perceiving that the Kings spirit would up againe having thus gotten the maine battell durst not adventure upon the Kings reare least he might turn head and so he let the King come off with the losse of appeales Baronus Anal. 1164. Sec. 11. and an order to annull the customes that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to loose to the scarcrow power of Rome yet it befell him as many great spirits that favour prevailes more with them then feare or power for being towards his last times worne with griefe at his unnaturall sonnes a shaddow of the kindnesse of the Popes Legate unto him wonne that which the Clergy could never formerly wrest from him in these particulars granted by him M. Paris An. 1176. That No Clerke shall answer in the Lay courts but onely for the forest and their Lay fee. This savoured more of curtesie then justice and therefore we finde not that the same did thrive nor did continue long in force as a Law although the claime thereof lasted Vacances shall not be holden in the Kings hand above one yeare unlesse upon case of necessity This seemeth to passe somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the Kings Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a hundred murders To prevent this evill the King loth to enter the List with the Clergy about too many matters let loose the law of feude for the friends of the party slaine to take revenge and this cost the blood of many Clerkes the Laity happly being more industrious therein then otherwise they would have been because the Ecclesiasticall Judge for the most part favoured them As an expedient to all which this Law was made and so the Clergy was still left to their Clergy and justice done upon such as sought their blood Clergy men shall not be holden to triall by battaile It was an ancient Law of the Saxons and either
by neglect worne out of use or by the valour of the Clergy laid aside as resolving rather to adventure their own blood then to end their quarrell before the Lay Judge by plea but grown weary of that course and likely also put hard to the pinch upon complaints made by them against Clerkslayers they are faine to have recourse to their ancient priviledge Hitherto therefore its manifest the Clergy were in their growing condition notwithstanding the policy and power of Henry the second who was the paragon of that age After him reigned Richard the first that must expiate his disobedience to his father by obedience to his ghostly father the Pope in undertaking the holy warre and being gone left the government in his absence so deeply intrusted to the Clergy as they could loose nothing of what they had gained unlesse they would and might have gained much more then they did or should had not the Bishop that was the overseer of the whole Kingdom being drunken with vanity and spued out his own shame However the successe was it was not contrary to the principles of those times for Richard had experience in the Emperor Frederick and his fathers example that the Pope Clergy were too hard for all the Potentates in Europe and therefore might most safely trust them with all he had at home whiles he was in their service abroad Nor were they short of what was intrusted to them but stook close for the maintenance of his right to the Crown and emptied themselves even to the very consecrated Vessels and procured the Laity of all sorts to doe the like to save the Kingdome from the rape of strangers and usurpers who esteemed the King dead in Law and as one buried alive Thus passed they to King John the government supposing themselves well enough assured of what they had gotten by their severall atchievements had under the reignes of three severall Kings successively and King John might well enough have understood the times if he had seriously considered them but being heigthned all his life time with lawlesse government wherein he was trained up in Ireland he knew not how to stoop till he stooped so low as the Legates knee and his Crown at the Popes foot leaving an example to posterity to beware of striving with the Clergy If then these sparks of ambition were so virulent being alone certainly in their joynt consultations much more They had long striven now since the conquest to have excluded the Laity from their Synods and about these daies effected it and yet about Henry the seconds time it may be supposed the thing either was not yet done or so lately that the Law was not cleare in that point for Petrus Blecensis who was Archdeacon of Bath about those times in his Epistle to the Archbishop of Yorke concerning the restraint of the growing sect of the Publicans he adviseth in these words Accipite clerum congregate populum ex eorum communi deliberatione qui spiritum Domini habent terribilis constitutio promulgetur c. and if the Historian doth not mistake the proceedings against that sect being onely for errours in Religion was in a Councell of Bishops and Lords Neverthelesse whether present or absent the Laity sate there as cyphers making the number great but not valuable by themselves For even in the Norman times they were brought so low as the constitution made by the Clergy wrought more upon them then civility it selfe can work upon professours of Religion in these daies M. West An. 1127. For it seems excesse of long haire was grown to that measure that the Synod cried out against it and decreed that men should cut their haire so as their eyes and laps of their eares might be seen and the King himselfe I mean Henry the first submitted to this cut and made all his Knights to doe the like and exposed themselves to the then odious by-names of clowns or Priests like to the round heads of these daies who formerly marched under the titles of criniti or Ruffians This did but touch the haire but they went to the quicke when they decreed that Lords should not sell their villains and that outlaries should passe in certain particular cases as in the constitutions of Archbishop Anselme may appeare Afterwards in these Kings times they flew at the throat of the government got all places of honour or profit or power whether for peace or warre under their gripe Antiq. Brit. 150. ibid 155. deposed and advanced as they pleased even to the Royall Thron it selfe and that not onely out of a sudden passion of State but advisedly concluded it for a maxime that the election of the King belonged to them as in the case of the election of Maude the Empresse they did hold forth to all the world Ibid. 127. and in which the King also then flattered them as holding their election so necessary that he kept the whole Synod in duresse to have their votes for the election of his sonne to be his successor CHAP. LX. Of the English Commonalty since the Normans time THe dignity of the English Crown thus deflowred by the great men was no losse to the common people for as in all decays of Monarchy the great men get nothing if they please not the people so the King can hold nothing if they be not contented And yet contented or not contented they could not gain much for as affaires then stood in the Christian world the Polititians discourse of three kinds of government proved idle neither could Monarchy Aristocracy nor Democracy attaine any semblable condition in any place so long as the Church held its designe apart prevailed to have the greatest share in all not now by the favour either of great or small but by a pretended divine right through which they now had gotten to their full pitch of Lordship in the consciences of men It must be acknowledged that this was a distemper in government yet such it was as kept humours low and restrained the inordinate excesses that in all kinds of government are subject to break forth so as neither King nor Lords nor people could swell into larger proportion then would suit with the ends of the Churchmen But to mind the matter in hand somewhat the Commons gained in these stormy times The taxes that they were charged with were rather perswaded then imposed upon them and generally they were sparing in that worke and it s noted for the honour of King Steven that though he was seldome without warre yet he not onely never charged the people with any tax but released that of Daneguelt and acquitted the subject for ever of that tax which former Kings challenged as their right all which shew him to be a brave King if he was not a very rich man Henry the second was more heavy because he had more to doe yet finde we but one assessment which was escuage unlesse for the holy warre which was more
the Clergymens then his Richard was yet a greater burden his reigne was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his father be blotted out but it was more troublesome to the people because it cost so much treasure was mannaged by such ill governours except the Archbishop of Canterbury and was unsuccesfull in most of his undertakings yet never invaded the liberties of the Commons by any face of prerogative But what wanted in him was made compleat and running over in his successor John who to speake in the most moderate sence of his government being given over to himselfe when he was not himselfe robbed the Lords of their authority bereaved the Church of its rights trode under foot the liberties of the people wasted his own Prerogative and having brought all things into dispaire comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regaine and Iohn could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gaine where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant government such as all men might learne which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in government is the law and the execution the latter being the life of the former and that of the Common-weale I say not that the law was augmented in the body of it or that the execution had a freer course then in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousnesse for the first whereof we are beholding to Glanvile in Henry the seconds time and for the latter to King Iohn or rather the Barons in his time in the publishing of the grand Charter or an enumeration of the liberties or customes of the people derived from the Saxons revived continued and confirmed by the Normans and their successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King Iohn soon repented of his oath the bond of his consent and to heale the wound got the Popes pardon and blessing thereupon so easie a thing it was for a sonne of the Roman Church to passe for a good catholique in an unrighteous way The execution of the Law was done in severall Courts according to the severall kinds of affaires whereof some concerned matters of crime penalty and this touched the Kings honour and safety of the persons of himselfe and his subjects and therefore are said to be contra coronam dignitatem c. The second sort concerne the profits of the Crown or treasure of the Kingdome The third concerne the safety of the estates of the people These three works were appointed unto three severall Courts who had their severall Judges especially appointed to that worke Originally they were in one viz. in the supream Court of Judicature the court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of severall men that were men of skil in such affaires and yet retained the Supremacy in all such causes still And because that which concerned the publique treasure was of more publique regard then the other the deputation thereof was cōmitted probably to some of their own members Gloss who in those daies were Barons of the Realm and afterwards retained the title but not the degree and therefore were called for distinction sake Barons of the Exchequer The particular times of these deputations appeare not clearly out of any monument of antiquity neverthelesse it s cleare to me that it was before Henry the seconds time as well because Henry the first had his Judex fiscalis Ll. Hen. 1. c 24. as Glanvile so frequently toucheth upon the Kings court of pleas which cannot be intended at the court of Lords for that in those daies was never summoned but in time of Parliament or some other speciall occasion but more principally because the Historian speaking of the Judges itinerant reciteth some to be of the common pleas Hoveden which sheweth that there was in those daies a distinction of jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advise of the Parliament after that the grand councell of Lords was laid aside by Kings and a Privy councell taken up unto whom could not regularly belong any juridicall power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime title of chiefe Justice who then was called Lord chiefe Justice of England and whose Office was much of the nature of the Kings Lieutenant in all causes and places as well in warre as peace and sometimes was appointed to one part of the Kingdome and by reason thereof had the name onely of that part and some other of the other parts The greatnesse of this office was such as the man for necessity of state was continually resident at the Court and by this means the Kings court was much attended by all sorts of persons which proved in after times as grievous to the King as it was burdensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergy as were also the under Officers of those courts for those times were Romes houre and the power of darknesse Other Courts also were in the countrey and were Vicontiel or Cours of Sheriffs and Lords of Hundreds and corporations and Lordships as formerly and these were setled in some place Hoveden but others there were which werr itinerant over which certaine Judges presided which were elected by the grand councell of Lords and sent by commission from King Henry the second throughout the Kingdome then devided into six circuits unto each of which was assigned three Justices so as the whole number of Justices then was eighteen The Office was before the comming of the Saxons over hither but the assignation was new as also was their oath for they were sworne But the number continued not long for within foure yeeres the King redivided the land into foure circuits and unto each circuit assigned five Justices making in the whole the number of twenty and one Justices for the Northern circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdome Hoveden 337. Ibid. 445. Neither yet did the first commission continue so long
the higher nature the party though not the Kings tenant lost his personal estate to the King for ever his free holds also for a yeere and a day after which they returned to the Lord of the soile by way of escheat It seemeth also that the losse not onely of chattels and goods but also of lands c. extended to Outlaries I conceive in case of Felony and the Kings pardon in such case could not bind the Lords right of escheate although it might discharge the goods and the yeere and the day whereunto the King was entituled which case alone sufficiently declareth what power Kings had in the estates of their subjects Manslaughter 5. Manslaughter made not bailable This was law in Henry the seconds time although it crossed the Norman Law Glanvil l. 14. cap. 1 3. and questionlesse it was upon good ground for the times now were not as those in the Conquerours times when shedding of blood was accounted valour and in most cases in order to the publique service And now it seems it was a growing evill and that cried so loud as though in case of Treason baile might be allowed yet not in this case ubi ad terrorem aliter statutum est saith the authour Robbers 6. Robbery shall be committed to the Sheriffe or in his absence to the next Castelane who shall deliver him to the Sheriffe And the Justices shall doe right to them and unto trespassers upon Land Ll. Gul. 4. Spicil 174. By the Conquerours law these offenders were bailable and I conceive this was no repeale thereof and the rather because Glanvile alloweth of pledges in all cases except Manslaughter yea in those crimes that did wound Majesty it selfe Glanvil lib. 14. cap. 1. although they concerne the destruction of the Kings person or sedition in the Kingdome or Army thereof The Justices herein mentioned were intended to be the Justices itinerant and the trespasses upon Land are meant such as are contra pacem Domini Regis as riotous and forcible entries for some trespasses were against the peace of the Sheriffe as formerly hath been observed Fauxonry 7. Fauxonry Glanvil lib. 14 cap. 7. is of severall degrees or kinds some against the King others against other men and of those against the King some are punished as wounds of Majesty as falsifying the Kings charter and whether falsifying of money were in that condition or not I leave or falsifying of measures yet more inferiour I cannot determine but its cleare by Glanvile that falsifying of the deed of a private person was of smaller consideration and at the utmost deserved but losse of member Inheritances may not be aliened 8. Glanvil lib. 7. cap. 1. Ibid. c. 5. Inheritances were in those times of lands or goods for it was the custome then that the personall estate the debts deducted was divisible into three parts one whereof belonged in right to the wife as her reasonable part the other to the heire and third to the testator to make his will of them and of the other two parts he could not dispose by will Concerning Lands it was regularly true that no man could alien his whole inheritance to the disherisin of his heire either by act in his life time or any part thereof by his last will without the concurrance of the heire But of purchased lands he may give part by act executed in his life time though he have no Lands by inheritance and if he hath no issue then he may alien all And where a man hath Lands by inheritance and also by purchase he may alien all his purchased lands as he pleaseth If the lands be holden in Gavel kinde no more of the inheritance can be conveyed to any of the children then their proportionable parts will amount unto This law of inheritance was divers according to the tenure for the lands in Knight-service alwaies discended to the heire but such as were holden in soccage passed according to the custome either to the eldest or to the youngest or to all equally And thus stood the generall state of inheritance from the Normans times hitherto Ll. Hen 1. c. 88. seeming somewhat too strait for the free men that by law of property might challenge a power to doe with their own as they pleased But the Normans saw a double prejudice herein the first was the danger of ruine of many of their families who now ingrafted into the English stocke and yet not fully one might expect a late checke to their preferments from the Saxon parents after a long and faire semblance made of their good will The second prejudice was the decay of their Militia which was maintained by riches more then by multitude of men partly because that rich men are most fearfull of offending and therefore ordinarily are most serviceable both with their bodies and estates against publique dangers and partly because by their friends and allies they bring more ayd unto the publique by ingaging them in the common cause that otherwise might prove unsensible of the condition of their Country The heire of a free man shall by descent be in such seism as 9. his ancester had at the time of his death Vide Glanv l. 7. c 9. doing service and paying releif and shall have his chattailes If the heire be under age the Lord shall have the Wardship for the due time and the wife her Dower and part of the goods If the Lord withhold seisin the Kings Justice shall trie the matter by twelve men The first of these branches is declaratory of a ground of common law but being applied to the last is an introduction of a new law of triall of the heires right by Assize of Mortdancester where formerly no remedy was left to the heire but a Writ of right If these three branches be particularly observed they speake of three sorts of heires of tenants by Knight-service viz. such as are majors or of full age and such as are minors or under age and such as are of a doubtfull age Those that are of full age at the death of their ancestors may possesse the lands descended and the Lord may not disseise him thereof but may be resisted by the heire in the maintenance of his possession so as he be ready to pay reliefe and doe service that is due and if the Lord expell him he shall have remedy by Assize Those heires that are minors shall be under the Lords guardianship till they come to one and twenty yeeres Tbe heires of such as hold by soccage are said to be at full age at fifteene yeeres because at that age they were thought able to doe that service but the sonnes of Burgesses are then said to be of full age when they have ability to mannage their fathers calling such as telling of money measuring of cloath and the like yet doth not Glanvile or any other say that these were their full age to all purposes albeit that some Burroughs at
this day hold the last in custome to all intents whatsoever The last branch provideth the remedy to recover to the heire his possession in case it be detained either through doubtfulnesse of age of the heire or his title and it directs the issue to be tried by twelve men This triall some have thought to be of Glanvils invention and it may well be that this triall of this matter as thus set down was directed by him yet he useth often in his booke the word solet and in his preface saith that he will set down frequentius usitata and its past question but that the triall by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the widdow of the tenant whose dower is not onely provided for but her reasonable part of her husbands personall estate The originall hereof was from the Normans and it was as popular as that of Wardships was Regall and so they made the English women as sure to them as they were sure of their children The Justices shall by Assize try disseisins done since the Kings 10. comming over Sea next after the peace made between him and his sonne This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that worke which formerly belonged to the County courts Glanv lib. 13. cap. 33. and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the writ is from the Kings last voyage or going into Normandy Justices shall doe right upon the Kings writ for halfe a 11. Knights fee and under unlesse in cases of difficulty which are to be referred to the King The Justices itinerant ended the smaller matters in their circuits the other were reserved to the King in his bench Justices shall inquire of Escheates Lands Churches and 12. women in the Kings gift And of Castle guard who how much and where So as the Judges itinerant had the worke of Escheators and made their circuits serve as well for the Kings profit as Justice to the subjects They used also to take fealty of the people to the King at one certaine time of the yeere and to demand homage also These matters of the Kings Exchequer made the presence of the Judges lesse acceptable and it may be occasioned some kind of oppression And as touching Castleguard it was a tenure in great use in these bloody times and yet it seemeth they used to take rent instead of the personall service else had that enquiry how much been improper 13. Of a tenants holding and of severall Lords That one man may hold severall lands of severall Lords and so owe service to them all is so common as nothing can be more neverthelesse it will not be altogether out of the way to touch somewhat upon the nature of this mutuall relation between Lord and Tenant in generall that the true nature of the diversity may more fully appeare The foundation or subject of service was a piece of land or other tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the tenant undertooke to performe service to the Lord Glanv lib. 9. cap. 4. and the Lord undertooke protection of the tenant in his right to that tenement The service was first by promise solemnly bound either by oath which the Lord or his deputy by the common law hath power to administer as in the case of fealty in which the tenant bound himselfe to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the tenement so given or otherwise by the tenants humble acknowledgement and promise not onely to performe the services due but even to be devoted to the Lords service to honour him and to adventure limbe and life and to be true and faithfull to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to each For though it be true that by promise of being the Lords man a generall service may seem to be implied yet in regard that it is upon occasion onely of that present tenure it seemeth to me that it is to be restrained onely to those particular services which belong to that tenement and therefore if that tenement be holden in soccage although the tenant be bound to homage yet that homage ties not the tenant to the service of a Knight Lit. lib. 2. cap. 5 nor contrarily doth the homage of a tenant in Knight service tie him to that of socage upon the command of his Lord though he professeth himselfe to be his man Nor doth the tenants homage binde him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for severall tenements Glanv lib. 9. cap. 1. Lib. 7. cap. 10. and these two Lords be in warre one against the other the tenant must serve his chiefe Lord of whom the capitall house is holden or that Lord which was his by priority who may be called the chiefe Lord because having first received homage he received it absolutely from his tenant but all other Lords receive homage of such tenant with a saving of the tenants faith made to other Lords and to the King who in order to the publique had power to command a tenant into warre against his own Lord. If therefore he be commanded by the King in such cases unto warre he need not question the point of forfeiture Glanvil lib. 9. cap. 1. but if he be commanded by a chiefe of his other Lords into warre against a party in which another of his Lords is engaged his safest way is to enter upon the worke because of his allegiancc to that Lord yet with a salvo of his fealty to that other Lord. Ibid. cap. 4. But in all ordinary cases tenants and Lords must have regard to their stipulation for otherwise if either breake the other is discharged for ever and if the fault be in the tenant his tenement escheats to his Lord and if the Lord faile he loses his tenure and the tenant might thence forth disclaime and hold over for ever Neverthelesse the Lords had two priviledges by common custome belonging to their tenures which although not mentioned in the stipulation were yet more valuable then all the rest the one concerning matter of profit the other of power That of profit consisted in ayds and reliefe The ayds were of three kinds Ibid. c. 8. one to make the Lords eldest sonne Knight the other to marry his eldest daughter the third to helpe him to pay a reliefe to his Lord Paramont which in my opinion
of the validity of the will in its generall nature it was transmitted to the Ecclesiasticall court CHAP. LXIII Of the Militia of this Kingdome during the reigne of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that frō the Norman times the power of the Militia rested upon two principles the one the allegiance for the common defence of the Kings person and honour and Kingdome and in this case the King had the power to levy the force of the Kingdome neverthelesse the cause was still under the cognisance of the great councell so farre as to agree or disavow the warre if they saw cause as appeared in the defections of the Barons in the quarrell between King Steven and the Empresse and between King John and his Barrons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Armes either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extreame prejudice and the Kingdoms dammage Nor did the former principle oversway the latter although it might seem more considerable but onely in the times of civill peace when the Lords were quiet and the people well conceited of the Kings aimes in reference to the publique which happinesse it was Henry the seconds lot to enjoy for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate not onely gained honour abroad but much more amongst his own people at home who saw plainly that he was for forraigne imployment of honour to the Kingdome and not onely contented with what he had in England but imbarked together with the Laity against the growing power of the Clergy for the defence and honour of the priviledges of the Crown wherein also the liberties of the people were included They therefore were secure in the Kings way and suffered themselves to be engaged unto the Crown further then they or their ancestors formerly had been out of pretence of sudden extreame occasions of the Kingdome that would not be matched with the ordinary course of defence For the King finding by former experience that the way of Tenures was too lame a supply for his acquests abroad and that it had proved little better then a broken reed to the Crown in case of dispute with the people aimed at a further reach then the Lords or Commons foresaw and having learned a tricke in France brought it over although it was neither the first nor last trick that England learned to their cost from France which was a new way of leavying of men and Armes for the warre Hoveden 1181. by assessing upon every Knights fee and upon every free man of the vallew of sixteen Marks yeerly their certaine Armes and upon every free man of ten Marks yeerely valew their certaine Armes and upon every Burgesse and free man of an inferiour valew their certaine Armes 2. That these should be ready prepared against a certaine day 3. That they should be kept and maintained from time to time in the Kings service and at his command 4. That they should not be lent pledged sold or given away 5. That in case of death they should descend to the heire who if under age should finde a man to serve in his stead 6. That in case the owner were able he should be ready at a certaine day with his Armes for the service of the King ad fidem Domini Regis Regni sui 7. That unto this every man should be sworn I call this a new way of levying of Armes and men not but that formerly other free men and Burgesses found Armes albeit they held not by Knight service for it was so ordained by the Conquerours laws formerly used but now the King thrust in two clauses besides the altering of the Armes the one concerning the oath whereby all men became bound the other concerning the raising and ordering of men and armes which here seems to be referred to the King onely and in his service and this I grant may imply much in common capacity viz. that all the power of the Militia is in Henry the second But this tricke catched not the people according to the Kings meaning for the words ad fidem Regis Regni still left a muse for the people to escape if they were called out against their duty to the Kingdome and taught the doctrine which is not yet repealed viz. That what is not according to their faith to the Kingdome is not according to their faith to the King and therefore they could finde in their hearts sometimes to sit still at home when they were called forth to warre as may appeare in one passage in the daies of King John who had gathered together an Army for the opposing of forraine power at such time as the Pope had done his worst against him and the whole Kingdome which Army was of such considerable strength as I believe none since the conquest to this day exceeded or paraleld it but the Kings mean submission to the Popes Legate so distasted the Nobles and people as they left him to his own shifts and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthned himselfe against the Nobles yet the Lords comming from London brought on the sudden such a party as the King was not able to withstand and so he came off with that conclusion made at Renny meade which though in it selfe was honourable yet lost the King so much the more because it was rather gained from him then made by him CHAP. LXIV Of the Government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government ONe hundred and ten yeeres more I have together taken up to adde a period to this first part of discourse concerning English government principally because one spirit of arbitrary rule from King Iohn seemeth to breathe throughout the whole and therewith did expire The first that presents himselfe is Henry the third begotten by King Iohn when he was in the very first enterprize of oppression that occasioned the first Barons bloody warres and which this King was so miserable as to continue for the greatest part of his life and reigne and yet so happy as to see it ended about four yeeres before he died Although the soule be not ingendered from the parent yet the temperature of the body of the child doth sometimes so attemper the motion of the soule that there is in the child the very image of the fathers mind and this Henry the third lively expressed being so like unto his father Iohn in his worst course as if his fathers own spirit
had entered into him and animated him in all his waies He brought in with him the first president of conscience in poynt of succession by inheritance in the English Throne for the streame of probabilities was against him He was a child and the times required a compleat man and a man for warre He was the child of King Iohn whose demerits of the State were now fresh in the minds of all men He was also designed to the Throne by his fathers last Will M. Paris An. 1216. which was a dangerous president for them to admit who had but even now withstood King Iohns depositing of the Crown in the Popes hands as not being in the power of a King of England to dispose of his Crown according to his own will Yet leaping over all these considerations and looking on Henry the third as the child of a King that by good nouriture might prove a wise and just King they closed about this sparke in hope it might bring forth a flame whereby to warme themselves in stormy times Nor did their hopes soon perish for during his minority the King was wise to follow good councell and by it purged out all the ill humours that the kingdome had contracted in the rash distempers of his fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those councels that suted with the most populer way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware M. Paris An. 1223. And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meere servant and its hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to governe a King should be much more worthy to governe themselves But the Pope put an end to all occasion of question hereabout for by his briefe he declares the King to be sixteen yeeres old and of age to govern himselfe and therefore all Castles are forthwith to be rendred up into the Kings hands M. Paris An. 1223 1224. This proved the rock of offence whiles some obeyed the Pope and were impugners of those that put more confidence in the Castles then in the Kings good nature Hence first sprang a civill broyle thence want of money then a Parliament wherein the grand charter of Englands liberties once more was exchanged for a summe of money Thus God wheeled about successes But the King having passed over his tame age under the government of wise Councellors and by this time beginning to feele liberty it was his hard condition to meet with want of money and worse to meet with ill Councellors which served him with ill advice that the grand Charter would keepe him down make him continually poore and in state of pupilage to this giving credit it shaped an Idea in his mind that would never out for forty yeeres after and thus advised he neglects his own engagement defies the government that by his Royall word and the Kings his predecessors in coole blood had been setled and that he might doe this without check of conscience he forbad the study of the law that so it might die without heire and he have all by Escheat This sadded the English and made them drive heavily the King to adde more strength brought in forrainers and forraine Councels and then all was at a stand The Councels were for new waies The great designe was to get money to supply the Kings wants and as great a designe was to keepe the King in want otherwise it had been easie for those at the helme to have stopped the concourse of forrainers other then themselves from abroad the confluence of the Queenes poorer alies lavish entertainment profuse rewards cheates from Rome and all in necessitous times But strangers to maintaine their own interests must maintaine strangenesse between the King and his subjects to supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a traine of oppressions depending thereon fines and amercements corrupt advancements loanes and many tricks to make rich men offenders especially projects upon the City of London Neverthelesse all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the great Charter and many promises passe from the King to that end and after that oathes and yet no performance this makes the people absolutely deny supplies Then the King pretends warres in France warres in Scotland and wars against the Infidels in the Holyland whither he is going the people upon such grounds give him ayds but finding all but pretences or ill successe of such enterprises they are hardned against supplies of him for the holy warre then he seems penitent and poures out new promises sealed with the most solemne execration that is to be found in the wombe of story and so punctually recorded as if God would have all generations to remember it as the seale of the covenant between the King of England and his people and therefore I cannot omit it M. Paris An. 1253. It was done in full Parliament where the Lords Temporall and Spirituall Knights and others of the Clergy all standing with their Tapers burning The King himselfe also standing with a cheerly countenance holding his open hand upon his brest the Archbishop pronounced this curse ensuing By the authority of God omnipotent of the Sonne and of the holy Ghost and of the glorious mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the holy Martyr and Archbishop Thomas and of all the Martys and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God We Excommunicate and Anathematize and sequester from our holy mother the Church all those which henceforth knowingly and maliciously shall deprive or spoile Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or councell by crossing in part or whole those Ecclesiasticall liberties or ancient approved customes of the Kingdome especially the liberties and free customes which are contained in the Charters of the common liberties of England and the Forrests granted by our Lord the King to the Archbishops Bishops Prelates Earles Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customes or being brought in have observed and all writers of
Ordinances or Councels or executioners or such as shall judge by such things All such as are knowingly guilty of any such matters shall ipso facto incur this sentence such as are ignorantly guilty shall incur the same censure if being admonished he amend not within fifteen daies after admonition In the same censure are comprehended all perturbers of the peace of the King and Kingdom for everlasting memory whereof we have hereunto put our Seales And then all throwing down their Tapers extinguished and smoking they said So let all that shall goe against this curse be extinct and stinke in Hell The King all the while continuing in the posture above mentioned said So God me help I will observe all these things sincerely and faithfully as I am a man as I am a Christian as I am a Knight as I am a King crowned and anoinied If we shall pare away the superstitious ceremonies and consider divine providence we may search into all Histories of all ages and we shall not finde a parallell hereunto so seriously composed solemnly pronounced with an Amen from the representative body of the whole Kingdome put in writing under seale preserved to posterity vindicated by God himselfe in the ruin of so many opposers And yet the dust of time hath almost buried this out of the thoughts of men so as few even of such as know it do seriously consider how far it may yet and even now be charged upon the account of this Nation Serious as it was it was soon forgotten nor would the King be long holden with promises some unhappy Starre strooke him in his birth he had been too hard for his promises and now having the Pope at his elbow he can dispence with his oath and bid defiance to an execration and in flat defiance of the grand Charter professeth oppression accumulates forraine Councellors and forraine guards contemnes his own people ushers in the Popes extortions upon them to fill up the measure thrives in nothing but in the match of his sonne and successour with a sister of Spaine and yet that also helps to hasten on the publque poverty and that a Parliament that brought forth a bloody issue although not by any naturall power but occasionally For the Barons mean now no longer to trust to promises strangers are banished the Realme and others of the English blood stepped into their places and Revenues But this was not all the King must confirme the grand Charter and thereto he addeth not onely his own oath but causeth the Prince his sonne to confirme the same in like manner It is likewise propounded to him that the chiefe Officers of the Kingdome may be chosen such as the Parliament shall like of And that other lawes meet for the government of the Kingdom might be established of all these the King made no bones And to make men believe that he was in good earnest he was contented to disrobe and disarme himselfe Dan. and invest the Barons both with Sword and Scepter retaining nothing but the Crown for himselfe This had been safety enough for the Kingdome but that it was a conclusion without an agreement for as it was on the Kings part made from a principle of shame and feare so it was determined in anger for after that the King had been thus drest and girt for the space of foure or five yeeres whatsoever he thought all the while it s no matter he began first to stretch his conscience and having the Popes dispensation to helpe soon makes his oath to flie asunder although his sonne had for the present more conscience But the other girt held more stoutly for the Lords had the Sword chained to their arme by the Kings own grant Liceat omnibus in regno nostro contra nos insurgere ad gravamen nostrum opem operam dare ac si nobis in nullo tenerentur Dan. An. 1258. and the Lords maintained their hold though not without some jealousies amongst themselves it s very probable had the King been a little longer breathed with patience he might have had his will upon easier termes for the Lords were not so jealous of one another as the Commons were jealous of the Lords that they meaned to rule onely for themselves But the King being now in a wood and bemired so as he must now resolve to get all or lose all and so either sacrifice his naturall desires or the remainder of his politicke power entered the field with the ayd of those Commons that chose rather to be oppressed by one King then many Lords and thus the Lords received the first blow and gave the first foile afterwards being worsted by their own divisions and jealousies they left a victory to the King that might have made him absolute if he had been moderate but pursuing revenge too farre he was distasted of his own party that looked on him as a Polyphemus that intended to devoure the enemy first that he might more freely feast upon themselves in the issue this made victory follow the King a farre off and taught the King that the end of civill warre must be attended with moderation in the Conquerour so farre as may stand with publique safety or otherwise he that is conquerour to day by Sword may be conquered to morrow by jealousie Thus many humours consumed and all parts tired after four yeeres continuall warre the State commeth to its right wits The Kings gaines in all this bloody sweat may be summed up in two heads First that he had liberty to choose his principall Officers of State by advice of the Lords and them also to displace by like Councell Secondly in that he gained though at a deere rate wisdome to observe the state of affaires and to apply himselfe according to occasion so lived Henry the third for three or four yeeres after these troubles long enough to let the world know that he was able to governe like an English King and to teach his sonne by his own late experience to be a wise governour betimes For Edward the first being trained up in the Tragedy of a civill warre wherein he was one of the chiefe actors Edw. 1. and having expiated the bloody way of his riotous youth by his holy warre as they called it now he betakes himselfe to amends making by justice in government having found by his fathers experience that a Kingdom well governed like good husbandry preserves the owner but being neglected destroyes both He came over in his third yeere in August was crowned in September summoned a Parliament in February following but adjourned it till after Easter and then it is found that the Church of late had been ill governed the Clergy men grieved by many waies the people otherwise handled then they ought to be the peace ill kept the laws lesse used and delinquents lesse punished then was meet and in the sence of these inconveniences were the laws of VVestminster the first made wherein the world
propriety and ownership but in point of direction for the benefit of the Common-wealth and lastly that the state of the times now was such as the kingdome was oppressed by strangers counsels and the Councels of the kingdome rejected that instead of law garisons of strangers ruled that no man could own his own that the subjects were looked upon as enemies and of all this the King made the principall instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgment of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to kingly dignity then was in those times practised And yet there was a difference also in the occasions of warre for certainly that last warre with Edward the second was more fatall and yet lesse warrantable and in the issue declared that there was more of the Queene therein then of the Lords who knew a way of removing favourites from the King without removing the King from the kingdome or driving him out of the world In all which neverthelesse it cannot be concluded that the Lords party was increased more then in the former Kings times for the losse of the field in Henry the thirds time against the Prince kept them in awe all the succeeding reigne although they were not then tongue tied and their second losse against Edward the second which was yet more sharpe questionlesse quelled their spirits although they lost no right thereby and increased the Kings party much by the accesse to the Crowne of the services of such as held of those Lords that were attainted or disinherited And yet by a hidden providence the King was little the better when it came to the pinch for when Edward the seconds Queen came from beyond the Seas though with but a small force all forsake the King neither regarding the former terrour of the Army of a King nor the right of service nor oath of fealty nor promises nor lawes nor other ingagements and so the King becomes a prey to an enraged woman or which is worse to a jealous wife so little can the name of a King doe when his person is despised and so vaine for him to trust in his Militia that hath already disarmed himselfe of the hearts of his Subjects The summe then of all the labours of the Nobles during these times will rest in this that they won the day and yet lost the field although they lost their own bloods and estates yet they saved all to the people and left laws in force able to debate with prerogative in the hand of any King that should succeed Thus stood the matter in fact upon such grounds as it had the validity whereof it s not my worke to censure neither by the ballance of Law or Gospell but leave it as a sore time that scarce will indure touch nor beare a King further then he was good or brave CHAP. LXVI Of the state of the English Clergy untill the time of Edward the third and herein concerning the Statute of Circumspecte agatis Articuli Cleri and of generall Councels and nationall Synods IT was a time of much action throughout the whole Christian State and Rome now having attained to its full glory began to be eyed on all parts as an irregular motion crossing all affaires that it may like the sole Empresse command all and be controlled by none and this wrought some stirrings in France complainings in England M. Paris 720. and facing between the Emperour and the Pope How chargable this was to the Popes treasury it s not materiall but it occasioned or was pretended to be the occasion of all the intolerable exactions ensuing there being scarce one yeere passed over without some extraordinary exaction leavied upon the Churchmen either by provisors tenths procurations levies for the Holy warre Quindizmes benevolences or other such like and where money was not to be had by levies of Ornaments or of rich apparell by intimation begging perswading commanding threatning and in this course continuing till they had outfaced shame it selfe and that the whole law of Rome became comprehended in this one Quicquid libet licet In generall therefore the Church of Rome cannot be said to thrive during these extorting times although Rome did for if the Laity were pillaged by the King the Clergy much more both by Pope and King if the one complained the other cried the one sometimes found reliefe from the King but the other was helplesse for the Pope had no eares to heare M. Paris not the King hands to helpe he neither durst nor would crosse the Pope although the Clergy told him that by these exactions they were impoverished in such manner as they were disabled to doe him service for their lay Fees Thus Rome becomes a burden to Rome and the members weary of bearing their head Hereafter must the Pope beware of falling out with Kings for the English Clergy now though late see that all is not Gold that glisters nor is it any great priviledge to be the Popes men further then the Pope will be a good master but this was not to be expected Popes were grown so excellent as they could not amend and England so enamoured of them as it s become their vere bortus deliciarum M. Paris as the Pope called it when he saw the rich vestments of the English Church men And therefore they must now be contented to be the Popes viands as often as his hungry maw doth call or otherwise they must fall out An excellent posture of affaires and brave preparative to dispose the hearts of all sorts for intertainment of the easie yoke of Christs government which was now at the doore and ready to be revealed Neverthelesse poore and mean as the Clergy was they had courage enough not onely to stickle both with King and people for their own liberties but also to invade the liberties both of the Crown and Commons having this advantage that they had to doe with a King and people that were two and themselves well seconded by the Pope that had no lesse power in those times of publique distraction and was bound to serve the cattell well that yeelded him so much milke M. Paris An. 1257. Vid. Addit Baronius Anal. 1306. The particular matters of debate may appeare in their paper of grievances composed in Henry the thirds time and their resolutions thereupon their complaints were renewed againe in the time of Edward the first if we may give credit to Baronius after the Statute of circumspecte agatis To the end therefore that the whole may lie before us I shall set down the matter or substance of both these papers severally in regard they sound much alike and note the difference all which I shall doe to the end that it may more plainly appeare what the Churchmens Idea was and how farre the
common law and Kings prerogative would agree thereto The complaints are of this natures 1. That the Church-possessions in their vacances are wasted and that Escheators doe not onely seise the personall estate of the Abbot or Prior deceased but such Corne in the barne and other goods belonging to the houses for their maintenance as also the profits of Churches impropriate 2. 3 4 5. Elections are either disturbed by the Kings Letters praeceding or by delay of the Royall assent subsequent the said elections 6. The Lay power without the advice of the Clergy doe put in eject or restore incumbents to Benefices voyd 7. Prelates are summoned to answer to the Lay power in the Writs Quare excommunicavit and Quare non admisit 8. Clerks are distrained in their Lay fees to answer before the Lay power in action of debts trespasse or other personall actions and in case they have no Lay fees the ordinary is distrained by his Barony to cause the Clerke to appeare 9. The Laity are forbidden to take oath or to inform upon oath before the Prelates and to obey Prelates commands in such cases 10. Persons taken and imprisoned upon excommunication are ordinarily dismist without satisfaction unto the Prelate and sometimes are not taken by the Sheriffe 11. 12. 33. 13. notwithstanding the Kings Writ and as well the King as his Officers doe ordinarily communicate with such as are excommunicated and likewise command others to communicate with them 14. Clerks imprisoned for felony are refused to be delivered to the Ordinary unlesse upon security to appeare before the Justices in Oyer 15. and sometimes are hanged before their Ordinary can demand them and sometimes their heads are all shaven that they may not appeare to be Clerks 16. Justices itinerant doe imprison Clerks defamed for felony or otherwise outlaw them if they doe not appeare And otherwise proceed against Clerks after their purgation before the ordinary 17. 18. The Lay power seises upon the estates of Clerks degraded for crimes 19. Clergy are compelled to answer and give satisfaction for offences against the forrest laws 20. before the Lay power And in case of default the Bishop by distresse is compelled to order satisfaction 21. as well in such cases as in person all actions 22. Priviledges of Sanctuary are invaded by force 23. Executors of Bishops are hindred from administring the estate without licence first obtained from the King 24. The Kings tenants goods are seised after their decease by the Kings Bailiffs 25. Intestates goods are seised by their Lords and their Ordinary hindred from administration 26. The Kings prohibition passeth in case of Tythes and Chappels 27. The like in cases of troth-plight perjury cerage heriet or other Church duties as money for reparations of Churches and fences in Churchyards 28. pecuniary punishment for Adultery 40. 29. and costs of suit in Ecclesiasticall court sacriledge excommunication for breach of the liberties of the Church contrary to the grand Charter 30. In cases of prohibition if the Ecclesiasticall Judge proceed contrary to the same he is attached and compelled to shew his acts in Court if the Lay Judge determine the cause to be temporall the Ecclesiasticall Judge is amerced if he proceed against the prohibition and it s tried by witnesses of two ribaulds and in case it be found for the Ecclesiasticall Judges cognisance 31. yet there is no costs allowed for such vexation 32. That Jewes in matters Ecclesiasticall aforesaid are by the Kings prohibition drawn from the Ecclesiasticall Judge unto the Lay Magistrate 34. Question about Lands given in Frankalmoine are tried in the Lay courts 35. 36. 37. 38. and by reason of such tenure the owners though Clergy men are compelled to doe suite at the Lay courts and are charged with impositions and are distrained hereunto although the Lord have other Land of the Donor in Frankallmoine subject to his distresse 39. Prelates summoned to higher Courts are not allowed to make atturnies to appeare for them in the inferior civill courts 41. Grantees of murage or other unwonted impositions compell the Churchmen to pay the same 42 43. The Clergy are charged with Quarter Cart-service and purveying 44. The chancery sendeth out new Writs contrary to the liberties of the Church and the law of the Land without the assent of the Councell of the kingdome Princes and Prelates 45. The King doth compell the Clergy to benevolences to the King at his voyage into forraine parts 46. Amercements granted to Clergy men are turned into fines by the Justices and by them taken 47. Clergy men are fined for want of appearance before the Justices itinerant and of the Forest upon common summons 48. Quo warrantoes granted against the Clergy for their liberties and the same seised unlesse they be set down in expresse words in their Charter 49. 50. notwithstanding that by long custome they have enjoyed the same and many times contrary to expresse grant This is the summe of their paper of grievances and because they found the King either wilfull or unconstant they resolve upon a remedy of their own by excommunication and interdiction not sparing the persons of any principall or accessory nor their Lands no not of the King himselfe and for this they joyn all as one man Now what scare this made I know not but Henry the third in the Stat. of Marlb and Edward the first in his Stat. at Westminster and other Satatutes the first spake faire and seemed to redresse some of these complaints as also did Edward the second and yet the Common law lost little ground thereby That which Henry the third did besides his promises of reforming was done in the Stat. of Marlbridge The successors of Abbats Priors and Prelates Marlbr c. 29. c. shall have an action of trespasse for trespasses done nigh before the death of their predecessors upon the estates of their Corporations And shall prosecute an action begun by their Predecessors And also shall have an assize against intruders into any of the possessions belonging to the said Corporations whereof their predecessors died seised This might seem a remedy provided against the first malady complained of and questionlesse bound all but the King and so might perchance abate somewhat the edge of that Article But it being the Clergies reach to grow rich and the Popes cunning to help on that worke that they might be as stores for supply of his treasury and had forbidden Abbats and other Prelates c. the liberty of disposing their estates by last Will. Kings therefore as supreame patrons to these bodies in their vacances used to seise all the estates of the Prelates with the temporalties to their own use as well to preserve the riches of the kingdome to it selfe and the possessions of such Corporations from spoile as to be a cloke of their own covetousnesse And under the estates of the Prelates or heads of these Corporations all the
in Edward the firsts time by the Ordinance of Circumspecte agatis and Articles concerning prohibitions the difference was made between dammages and pre reformatione and the same affirmed by this Law and so the matter setled and the fourth Article of the Clergies complaint in some measure satisfied cap. 4. Defamation within cognisance of the Ecclesiasticall court and corporall penance therefore and Commutation The words are generall and peremptory with a non obstante the Kings prohibition and yet the Law afterwards restrained the sence to defamation for crimes or offences triable in the Ecclesiasticall court and this gave further satisfactin to the fourth Article of the Clergies complaint foregoing cap. 5. Tythes of new Mils may be recovered in the Ecclesiasticall court This Tythe of Mils was a new incroached Tythe never mentioned in any former law of this Kingdome nor demanded by the Synod at London Anno 1173. which mentions fruit trees young broods of living creatures that are tame Herbage Butter Cheese with other particulars but mentions not new Mils It s true that anciently Mils payd Tythes but such they were which were ancient and had payd the same by custome and such as by Law in the Confessors time were declared to be given a Rege Baronibus populo But by the second Article of the Clergies complaint next foregoing it appeares that the Kings Mils refused to pay this Tythe now whether the new Mils were called the Kings Mils as being made upon the publique streames by the Kings licence or whether the Mils newly made within the Demesnes of the Crown it s not to be insisted upon but its evident that till this Law made the new Mils would not tythe their labours One and the same matter may be tried at the common Law after sentence in the Spirituall Court in divers respects cap. 6. The great sore that was complained of was that the Clergy after purgation in the Ecclesiasticall court made were proceeded against in the Kings court in case of breach of peace or fellony as may appeare out of the 16th Article of the Clergies first complaints and the 8th Article of that taken out of Baronius Neverthelesse the present law subjoynes an example of the questioning a Lay man in the Ecclesiasticall court in case of violence done to a Clerke as a matter which may be tried in the Ecclesiasticall court and yet reviewed by the Kings court The Writ de Excommunicato deliberando shall not issue forth but upon evident breach of the Kings liberty cap. 7. This might be intended in satisfaction of the tenth Article of the Clergies complaint in Baronius and the tenth Article in the Clergies complaint first recited although that complaint both in the 10 11 12 and 33 Articles seem to be but clamour upon Officers and not the Kings court of justice Clerks Officers to the Exchequer are to be corrected by their Ordinaries cap. 8. and yet not tied to residence during their attendance on the Exchequer This is in part an answer to the second Article of the Clergies last complaint and a justification thereof as a thing that is pro bono publico Clergie mens goods shall not be distrained either in the high way or Sanctuary grounds cap. 9. unlesse such as have been of late purchase The complaint exhibited in Henry the thirds time and the 8th Article was onely in ordinary personall actions but in the complaint made in Edward the seconds time Article 12. is that it s without cause that they are so distrained This law yeeldeth them somewhat viz. immunity from distresse within their ancient possessions which had been by ancient custome priviledged but yeelds nothing as touching their latter purchased Lands because they had no such custome cap. 10. High waies and Sanctuaries shall be free for such as abjure so as they shall neither be restrained from liberty nor necessaries kept from them Felons may make free confession to the Priest without danger The grievance in the 22th Article of the Clergies complaint in Henry the thirds time and the ninth in that of the times of Edw. 2. are hereby relieved provided that the delinquent keeps himselfe in due order cap. 11. Houses of Religion shall not be oppressed with corodies pensions or entertainments of great men This answered the grievance in the 42 and 43 of the first complaint and the 18 of the latter and in effect little other then what was formerly setled by VVest 1. cap. 1. cap. 12. The Kings Tenants may be cited before the Ordinary out of their own Town and if Excommunicated for want of appearance the Writ de excommunicato capiendo shall be awarded A remedy this was against the grievances in the 12 and 33 Articles of the first complaint and in the 10th Article of the last scedule of complaints And thus the Clergy have gotten the day of the Kings Tenants which they had been striving for ever since the conquest as may appeare by what hath been formerly said and now the Kings Tenants are in no better condition then other men viz. they may now be excommunicated without the Kings licence nor is the answer Nunquam fuit negatum to be referred to the point of Excommunication for that power was denied them but unto the citing them out of their own Parish which cannot be found to be denied to the Clergy by any thing that yet appeareth A Clerke presented and found unable by the Ordinary shall be tried againe by the Ecclesiasticall cap. 13. and not the Lay Judge Although the fitnesse or sufficiency of the party presented is to be examined by the Ordinary yet the civill Magistrate hath power in action brought to inquire and determine whether the Ordinaries worke was rightly done and so the 17 Article of the last complaint answered Elections shall be free cap. 14. The law was of the same with this in the Stat. W. 1. cap. 5. which see before and it may be that the iniquity of the times continued notwithstanding and so occasioned the renewing of this law A Clerke having taken Sanctuary shall not be compelled to abjure cap. 15. Nor after confession of the crime cap. 16. or appealing others before the secular Judge shall be denied his Clergie Although the Temporall courts proceeded not so farre as to passe sentence against a Clerke that had taken Sanctuary yet they proceeded to inquiry as may appeare by what was said formerly concerning the Stat. West 1. cap. 2. and therefore though this law in the 15th Chap. alloweth that a Clerke in Sanctuary shall enjoy his Ecclesiasticall liberty yet the words legi Regni se reddens are interposed and the reason is because the King upon indictment found had right to the delinquents goods and profits of his lands untill due purgation 7 E. 2. Fits tit forfaiture 34. and then his Lands were by a Writ out of the Chancery to be restored to him againe nor could any purgation regularly
and terminer in the cases of Quare impedit and Darraine presentment West 2. cap. 30. and gave them power to give judgement And thus the Commons gained still in point of conveniency cap. 16. Free men shall be amerced according to the degree of the fault saving to them their free hold and to Merchants their maine stocke and to villaines their Waynage and Clergy men shall be amerced according to their Lay fee. Barrons shall be amerced by their Peeres others by the vicinage In this regard is to be had first of the persons that are to be amerced then of the parties by whom and lastly of the nature and quantity of amercements The persons amerced are ranked into foure Classes Barons Clergy Free men and villaines But in regard of the parties by whom they are to be amerced they are but two Barons and Freemen for the Clergy villaines and free men are to be amerced by the free men of the neighbourhood Marlb cap. 19. In what Courts these amercements shall be the Stat. Marlbr tels us not before the Escheator nor other that make enquiry by Commission or Writ nor before the Justices of Assize or Oyer and terminer but only before the chiefe Justices or Justices itinerant The Statute of VVestminster addes a fifth Classes of Cities and Towns by expresse words Westm 1. cap. â— which seems not so necessary unlesse in pillaging and oppressing times for they were taken to be within the Statute of Magna carta Miror cap. 5. sect 4. though not therein named The rule of the quantity of amercements is now set down in generall and left to the discretion of the Peeres or Vicinage which formerly by the Saxons were specially set down in the law The rule in generall is with a ne plus ultra viz. not further or more then that the party amerced may spare and yet hold on in the maintenance of his course according to his degree And it must be also according to the quantity of the offence for the greatest amercements must not be ranked with the least offences so as in every degree the maine sustainance of the party is saved yea the villaines how ever meane they be they must have their maintenance And this sheweth that villaines had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unlesse they were the Kings villains who it seemeth were meerely under the Kings mercy as being both their Lord and King against whom they could hold nothing as properly their own and therefore in all other cases even then the villaines were borne under a kinde of liberty as in the Saxon times formerly hath been declared which the Law protected against their owne Lords No man shall be compelled to make repaire cap. 17 18. or maintaine any bridges banks or causies other or otherwise then they were wont to be made repaired or maintained in the time of Henry the second The limitation to the times of Henry the second sheweth that his justice was such as maintained the common rights of men but in the times of Richard the first Miror cap. 5. sect 2. and more especially of King John those rivers waters and fishings formerly used in common were incroached upon inclosed and appropriated to particular mens uses which occasioned many bridges banks and causies to be made and repaired to the great charge of private men all which are discharged by this Law cap. 19. No Sheriff Constable Coroner or other Bayliff shall hold any pleas of the Crown Escheators are also expressed in the old bookes of Magna carta and the abridgements however it seemeth that it s within the intent of the law which was made to avoyd the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of estates of men would inquire of matters concerning the lives of men and Sheriffs that had power of trials in cases of theft as hath been already shewen Ll. Hen. 1. c 8. Glanv lib. 1. cap. 2. abased the same for their own benefit because in such cases they had the forfeitures This law therefore takes away such occasions viz. from the Sheriffs and Corroners and Bayliffs or Justices other then by expresse commission thereto assigned all power to hold pleas of the Crown by triall leaving unto them neverthelesse power of inquiry of which anciently they had the right cap. 20. If the Kings tenant dieth supposed in arreare an inventory shall be made of his stocke by honest men but it shall not be removed till accounts be cleared and the overplus shall go to the Executors saving to the wife and children their reasonable part The first clause hereof was a law in Henry the firsts time and a customary law in Henry the seconds time Glanv lib. 7. cap. 5. being a remedy against an old Norman riot of the Lords seisure of the whole personall estate of the party deceased under colour of a law The second part concerning the overplus hath this additionall subjoyned in the Charter of King John If any free man die intestate his Chattels shall be divided by his parents and his friends in the presence of the Church saving to every one their proper debts and thus since the conquest the Church men incroached by degrees unto a great power in matters testamentary I say by degrees for as yet by this law it appeareth that they were but overseers or eye-witnesses for as yet right of ordering or disposing they had none as may appeare in that case of a bastard dying without issue and intestate the Lord shall have his personall estate Glanvil lib. 7. cap. 16. and in all cases the executor had then nothing but bare assets and the overplus was assigned between the wife and children according to their reasonable part or if the party died intestate the next friends did administer paying the debts and making dividend of the overplus into the reasonable parts according to the ancient Saxon custome still continued nor doth the testimony cited out of Bracton prove any other then that the auncestor hath free power to order his estate as he pleaseth Coke instit 2. pag. 33. and that the children shall have no more then is left unto them by their auncester either in his will or in case of dying intestate by the custome or law which is and ever was the rationabilis pars No purveyance for any Castle out of the same Town where the Castle is but present satisfaction must be made cap. 21. and if in the same Town satisfaction must be made within forty daies Purveyance was ancient provision for the necessities of the publique and so farre was commendable seeing it s not the common case of all men to regard the publique above their own private interest therefore the publique must provide for it selfe by their meanes in whom the publique is most concerned and this
about these times and therewith ended both the worke and common use of the ancient iters and yet all these later courts joyntly considered have not the like comprehensive power that the iters had for they had the power of hearing and determining all causes both of the Crown and Common-pleas albeit in a different manner that is to say in the first times promiscuously united into one and the same person but soon after the Norman times and more clearly in the time of Henry the second that power was divided into severall persons some sitting upon the Common pleas others upon the Crown pleas The Judges of these journying courts were specially assigned by the King as in the case of the Gaole-delivery or setled by the Law upon the Judges of both benches at Westminster as in case of oyer and terminer Westm 2. ca. 29 and of the Assizes or Nisi prius saving that in the last case they were associated with Knights in the Counties for the taking of Assizes Ibid. c. 30. Now concerning the Courts that were setled some were setled or annexed to the Kings personall residence as the Chancellours Court for in these times it began to have a judiciary power of eminent stature and growing out of the decayes of the great chiefe Justice of England Then also the Kings bench was annexed by the same Law unto the Kings Court or personall residence Fleta Artic. sup cart cap. 15. as it anciently ever had that honour although it seems the endeavours were to make it like the Common pleas in that particular Another and last court that was setled in this manner was the Marshals court which in the originall onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places 5 E. 4 fo 129. because the Kings attendants were many in those times when as the Courts of justice continually attended on his person and this precinct was called the Vierge and all cases of debt and covenant where both parties were of the Houshold Artic. sup cart cap. 3. and of trespasses vi armis where one of them was of the houshold were handled in the court of the Verge or the Marshals court And inquests of death within the same shall be taken by the Coroner of the County with the Coroner of the houshold Other Courts were rurall and affixed also to some certaine place either of the County or Town or other particular place That of the County suffered in these times great diminution even almost to destruction by a Law restraining the power thereof onely to trespasses of 40 s. value or under Stat. Gouc cap. 8. for though formerly the Kings justices incroached upon the County courts and contracted suits before themselves which by the ancient law they ought not yet it was ever illegall and the County courts held their right till this law was made which kept under those inferiour Courts and made them of lesse account then formerly Neverthelesse the Kings Justicies or Writ to the Sheriffs oftentimes inableth the inferiour Court to have cognisance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations West 1. cap. 23. Faires and Markets viz. that no person should be sued in any of them which was not a debter or pledge there CHAP. LXIX Of Coroners Sheriffs and Crown pleas Coroners Westm 1. ca. 10 COreners shall be chosen in the county from the wisest greatest and chiefe men of the country Of these Officers formerly hath been spoken as touching their election qualification and worke this Law brought in no change of any former Law but onely of a former custome gained by these degenerating times which brought men into place that were farre unfit who otherwise of poore and mean condition maintained themselves by bribery and extortion and being found guilty had not sufficient to give recompence This law therefore revives the first law and hold these men to their worke of taking inquests and appeales by indenture between themselves and the Sheriff and these were to be certified at the next comming of the Justices Sheriffs Artic. sup cart cap. 9. The Free holders in every county if they will shall elect their own Sheriff unlesse the Sheriffwicke be holden in see This was indeed the ancient custome as the Officers of the Kingdome were eligible by the Common-councell of the Kingdome Miror cap. 1. Sec. 3. Stat. de vic 9 E. 2. so were also the Officers of the County chosen by the County But within a few yeeres in the time of Edward the second comes another law that the Sheriffs shall be appointed by the Chancellor Treasurer Barons of the Exchequer and the Justices which Law was made in favour of the people as by the file of that Statute doth more fully appeare for though at the first blush it may seem a priviledge lost by the free men that these great men should have the election of the Sheriff yet it proved a great advantage to the common quiet of the people in those times of parties and was so apprehended Otherwise as the case stood in those daies of Edward the second it was no time for him to gaine upon the peoples liberties Nor had the Statute of Articuli super cartas whereof we now treat been penned with these words if they will and questionlesse in these daies we now live in if the people had but a little taste of this seeming liberty of electing Sheriffs in the County court as formerly it was used it would be soon perceived that the election of these chiefe Officers were better disposed in some other hand if rightly pursued Homicide by mis-fortune shall not be adjudged murther Chancemedly Marlbr cap. 25. That the Saxons made difference between homicide by misfortune and that which was done felleo animo or with a spirit of gall formerly hath been shewed now what it was that altered the case I cannot say unlesse the violence cruelty and oppression of the times formerly all kind of manslaughter was finable I mean in the Norman times and so might more rationally be ranked into one degree but now the punishment began to change from forfeiture of estate and losse of member to death and forfaiture of estate and therefore it was more necessary to make the difference in the penalty seeing in the fine formerly a difference was observed and this difference to assert by a Law that might limit the invenomed spirits of the Judges of those daies Robbery Robbery punished with death This crime hitherto was punished by fine and losse of member at the utmost but is now made capitall punished with death One example whereof and the first that story maketh mention of we finde of an Irish Nobleman in the daies of Henry the third who suffered death for piracy and it was a law that then though rigorous yet seasonably was contrived to retard the beginnings and hasten the conclusion of a civill warre in a
King and complained of that summons as of a common grievance be cause that neither they nor their ancestors were bound to serve the King in that Countrey and they obtained the Kings discharge under his broad Seale accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmaine Stat. Mortm 7 Edw. 1. which was made within the compasse of these times by which it was provided that in case Lands be aliened contrary to that Statute and the immediate Lords doe not seise the same the King shall seise them and dispose them for the defence of the Kinodome viz. upon such services reserved as shall suite therewith as if all the service of a Knight must conduce thereto and that he is no further bound to any service of his Lord then will consist with the safety of the Kingdome This was the doctrine that the sad experience of the later government of Kings in these times had taught the Knighthood of England to hold for the future ages Stat. de Militibus No tenant in ancient demesnes or in Burgage shall be distraimed for the service of a Knight Clerks and tenants in Socage of other Manors then of the King shall be used as they have been formerly Tenants in ancient Demesne and tenants in Burgage are absolutely acquitted from forraine service the one because they are in nature of the Kings husbandmen and served him and his family with victuall the other because by their tenure they were bound to the defence of their burrough which in account is a limbe or member of the Kingdome and so in nature of a Castle guard Now as touching Clerks and tenants in Socage holding of a subject they are left to the order of ancient use appearing upon record As concerning the Clergy its evident by what hath been formerly noted that though they were importunate to be discharged of the service military in regard that their profession was for peace and not for blood yet could never obtaine their desire for though their persons might challenge exemption from that worke yet their Lands were bound to finde armes by their deputies for otherwise it had been unreasonable that so great a part of the Kingdome as the Clergy then had should sit still and looke on whiles by the law of nature every one is engaged in his own defence Nor yet did the profession of these men to be men for peace hold alwaies uniforme some kind of warres then were holden sacred and wherein they not onely adventured their estates but even their own persons and these not onely in defensive way but by way of invasion and many times where no need was for them to appeare Tenants in Socage also in regard of their service might plead exemption from the warres For if not the plough must stand still and the land thereby become poore and lean Neverthelesse a generall service of defence of the Kingdome is imposed upon all and husbandmen must be souldiers when the debate is who shall have the Land in such cases therefore they are evocati ad arma to maintaine and defend the Kingdome but not compelable to forraine service as the Knights were whose service consisted much in defence of their Lords person in reference to the defence of the Kingdome and many times policy of warre drew the Lords into Armes abroad to keepe the enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Footmen in their Armies Concil Brit. 406. but the better and more wealthy sort of them found armes of a Knight as formerly hath been observed yet alwaies under the pay of the common purse and if called out of the Kingdome they were meere voluntiers for they were not called out by distresse as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law neverthelesse remaining still intire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword for though Kings pretended danger to the publique often times to raise the people yet the people would give credit as they pleased or if the Kings title were in question or the peoples liberty yet every man tooke liberty to side with that party that liked him best nor did the Kings proclamation sway much this or that way It s true that presidents of those times cry up the Kings power of arraying all ships and men without respect unlesse of age or corporall disability but it will appeare that no such array was but in time of no lesse known danger from abroad to the Kingdome then imminent and therefore might be wrought more from the generall feare of the enemy then from the Kings command and yet those times were alwaies armed in neighbouring Nations and Kings might have pretended continuall cause of arraying Secondly it will no lesse clearly appeare that Kings used no such course but in case of generall danger to the whole Kingdome either from forraine invasion as in the times of King John or from intestine broiles 21 E. 1. rot 81. as in the times of Henry the third and the two Edwards successively and if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that generall arrayes were not levied by distresse till the time of Edward the first 23 E. 1. Memb. 5. and then onely for the rendezvouz at the next Sea coast and for defence against forraine invasion in which case all subjects of the Kingdome are concerned by generall service otherwise it can come unto no other account then that title prerogative and therein be charactered as a tricke above the ordinary straine Fourthly those times brought forth no generall array of all persons between the ages of sixteen yeeres and sixty that was made by distresse in any case of civill warre but onely by Sheriffs Summons and in case of disobedience by summons to appeare before the King and his Councell which sheweth that by the common law they were not compelable or punishable Lastly though these arraies of men were sometimes at the charge of the King and sometimes at the subjects own charge yet that last was out of the rode way of the Subjects liberty as the subsequent times doe fully manifest And the like may be said of arraies of ships which however under command of Kings for publique service were neverthelesse rigged and payed out of the publique charge The summe of all will be that in cases of defence from forraine invasion Kings had power of array according to the order of Law if they exceeded that rule it may be more rightly said they did what they would then what they ought
CHAP. LXXI Of the Peace WArre and peace are two births by severall venters and may like the day and night succeed but can never inherit each to other and for that cause they may claime to belong to one father and that one and the same power should act in both and yet it s no good maxime that he that is the chiefe Commander in warre ought to be the chiefe in the order of peace For it naturally befals that warre especially that which we call civill warre like some diseases in the body does rather breed ill humours then consume them and these must be purged by dieting the State and constant course of justice unto which the rugged waves of warre have little or no affinity if not enmity Neverthelesse the wisdome of our ancestors thought it most meet to keep their Kings in worke as well in time of peace as of war and therefore as they anciently referred the principall care thereof to the Lords who together with certaine select persons in every County did administer justice in severall iters or circuits so when Kings had once gotten the name of being chief in civill affaires as they had it in martiall they soon left the Lords behind them who also were willing enough with their own ease and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or commissioners thereto deputed And thus that peace which formerly passed under the titles of Pax Domini pax vice comitis it is pax Regni became by eminency swallowed up in that which was called the Kings peace and the Justices called the Kings Justices and himself flattered into that title of Fountaine of Justice which belongeth onely to him that is The Most High or Chiefe Law-giver The manner how this honourable care of the safety and peace of the Kingdome was imployed may be referred to a double consideration the one in execution of justice upon delinquents the other in preventing occasions of offence or delinquency by meanes whereof the publique peace might be endangered The first was acted diversly according to the present sence of affaires for what was at first done by the Princes in their circuits Tacitus with one hundred of the Commons called Comites and that done per pagos vicesque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chiefe Magistrates of Towns in their courts and Sheriffs in their Tornes as Judices stati for the ease of the people in matters of lesse moment I say I conceive it was in the Torne for I suppose no emergent court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve yeeres of age at the same 52 Hen. 3. Marlb cap. 25. and for the same cause it seemeth that one certaine Torne every yeere was holden for inquiries of homicide unto which all above twelve yeere of age were to come except Barons Clergy and women or otherwise all such had been bound to attendance on every Torne Neverthelesse the worke of the Tornes continued not to heare and determine as anciently they had done For in Henry the thirds time and formerly divers men had prisons to their owne use some as Palatines Mitor cap. 2. Sec. 9. other as Lords of Franchise and others by power and usurpation and had the benefit of all fines incident and by this meanes many were fined that deserved it not Mag. cart cap. 19. and some also that deserved worse to prevent which evill Henry the third tooke away that power of holding Crown-pleas Glocest cap. 8. West 1. cap. 3. And Edward the first tooke away their power to determine escapes and left them onely the power of inquiry and to certifie at the next comming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such coole pursuit Men were still ordinarily imprisoned and so continued oftentimes till the comming of the Justices itinerant For whereas in case of bloodshed the Writ de odio gratia was a remedy the other had no remedy but by procuring a Commission of Oyer and terminer which ordinarily was a cure worse then the hurt Stat. Wint. 13 Edw. 1. As a remedy hereof Edward the first found out the new way of making Justices of peace as may appeare by the Statute at Winton which law being purposely made for the conserving of the peace providing for penalty of crimes already committed as well as for the suppressing of future ordaineth that offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soone made way to resiant And before that Statute it seemeth the King had found out the way Coke Inst 4. p. 176 if that note be true which is left revived into memory by that honourable reporter which relating to the sixth yeere of Edward the first saith that then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Hen. 1. if I mistake not the sence of that clause in his laws concerning vagabonds he ordereth that they shall be carried Iusticiae quae praeest Hen. 1. cap. 58. although the language be not so Clerkly as to speake the sence out Now though their worke as yet was but in triall and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriffe was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriffs Torne and Lords Leets of that little remainder that was left them of judicatory power in matters that were against the peace and made their inquisitory power lesse regardfull and eased the Justices itinerant of much of their work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seemes were jealous of giving the power of determining those offences into any sudden hand To summe up then the first part as touching the punishment of offences against the peace the wheele is now in the turning the Leets and Tornes begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and terminer difused by the bringing in of a new order of Justices for the peace especially appointed And the Parliament as the supreame providors left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the Kings court after that the Common pleas were setled and confined to a certain place The preserving of the peace for the future
consisted in preventing and suppressing riots routs unlawfull assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other malefactors And herein we are to consider 1. The Laws 2. The meanes 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the Kings own person and therefore we finde not onely the assize of Armes but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can finde put the same into the force of a law by Parliament finding by experience that Proclamations may declare the Kings mind but not command the peoples wils although peradventure the thing enjoyned was of ancient use and little inferiour to custome or Common law Such are the distempers of civill broiles that bring up peace in the reare as a reserve when their owne strength is wasted rather then out of any naturall inclination thereto A briefe recollection of the laws thus ensues Stat Wint. 13 Edw. 1. cap. 1. In case of Robbery or fellony committed and the delinquent be not forth cemming or discovered the County or Hundred shall answer the dammages Of this more may appeare from the Norman and Saxon laws the intent appeareth by the law it selfe to stirre up the people to use all meanes by pursuit with hui and cry and making inquisitions of the fact with all speed in Townships Hundreds Franchises and Counties cap. 2. Persons suspected shall not be entertained or harboured by any inhahitant unlesse He will undertake for him Of this also formerly both in the Norman and Saxon laws cap. 3. Walled Towns shall keepe their gates shut from Sunne set to Sunne rising The like observed in Cities Burroughs and Townes from the feast of Ascention to Michaelmas The power of the watch was great it might apprehend any passenger and stay him all night and if he be a suspected person he is to be committed to the Sheriffe and if an escape be made the party is to be pursued with hui and cry These two last Chapters were in effect in Henry the thirds time in course by way of the Kings command by Writ in the 36 and 37 yeers of his reigne with some more particulars concerning the same M. Paris in Addit post Adversar cap. 4. High waies through every Lordship shall be kept cleare on each side by the space of 200 foot from hedges ditches Bushes and underwood High waies herein intended are such as are from one Market Town to another and in such were alwaies preserved the publique peace or safety for the maintenance of commerce and freedom of traffique which is of such publique concernment that it hath been of very ancient institution Every man between the age of fifteen yeeres and forty shall maintain Armes in his house cap. 5. according to the ancient Assize for the preserving of the peace This Chapter brings into consideration the second thing propounded viz. the meanes of preserving of the peace which are two First by maintaining Armes 2. By certifying defaults In the first is to be considered the persons that are to be assessed 2. The Armes 3. The end The persons to be assessed to Armes are indefinitely set down and comprehend all sorts as well bond as free and others for such are the expressions in the Commission of Henry the third 36 Hen. 3. M. Paris post adversaria Hoveden But by the Assize of Henry the second none were to be armed but free men and they worth sixteen or ten Marks in goods at the least yet their ages are limited by this Law they must be between fifteen yeeres and forty but by the Commission in Henry the thirds time all between fifteen and sixty yeeres of age were to be armed King John arrayed all sorts free bond and all others that have Armes or ought to have or can carry Armes M Paris Anno 1213. and it seems by what hath been formerly noted that those that were younger then their tenure would beare them out were accepted into service if they would offer themselves but by these courses they though under one and twenty yeeres of age were not onely accepted but compelled to warre Hoveden Hen. 2. M. Paris addit Under this title we may also touch upon the persons that were the instruments to array these men or rather to arme them and these were Justices itinerant or one or more Commissioners such as the King found most meet for the service and unto these were Commissions with instructions sent and sometimes Writs were directed onely to the Sheriffs to take with them twelve Knights of the County M. Paris post adversaria and to goe into every Hundred and call before them all such persons as by the law ought to be assessed at Armes and to cause them to be sworn to finde and maintaine Armes in such manner as by the Law they then should be or formerly were assessed and sometimes the establishment of Armes were set down in those Writs and sometimes published by Proclamation M. Paris Anno 1253. 1256. For Kings found all means little enough to prevaile to bring in alteration of Armes and of their service which was a thing not onely troublesome but chargeable and whereunto they could not easily prevaile to bring the freemen to consent and therefore sometimes the indeavours of Kings in such cases did not onely meet dilationem M. Paris An. 1253. but also deletionem as the Historians words are untill the way was found out to declare an establishment by Parliament by this Statute made at Winton Now for the nature of the establishment we are to consider that the people of England were distinguished according to their teanures Ll. Gulielm 58. into such as held by Knightservice and such as held by Soccage and that none but those being freeholders could be charged to finde armes according as by the Lawes of the Norman Conquerour may appeare The establishment of Armes for the Knights were established by their tenures in certainty and therefore no need was either of assessment or oath to tie them to finde such Armes but all the difficulty was for such as were not bound by other tenure then as free born subjects all of whom doe owe to their Country defence and so questionlesse had liberty to provide themselves of such armes as were by common and constant use held most advantagious against the common enemy and for the publique defence And that these were put in certainty may appeare by the Law of King VVilliam formerly noted and by some instances in the Saxon Laws anciently used Ll. Aethelst c. 16. amongst others that Law of Aethelstane that for every plough every man
or provide for future generations Neverthelesse if all be granted viz. that this Statute is but a present order that the Armes therein are too slight to resist an enemy and the end thereof was onely to enable the Kingdome against Thieves and Robbers yet could not Edward the first pretend to have any power to assesse Armes at pleasure upon occasion of warre for the defence of the Kingdome nor is there any president in story that countenanceth it seeing Henry the third and Henry the second in their course used the rule secundum facultates as had been formerly observed and the rule foregoing tended onely to freemen and their Lands Nor did King John disclaime the same but pursued it and yet if there be any president of prerogative in story which King John had not that King will be looked upon as a King of wonderment I say King John pursued it when he was in the strength of his distemper threatned by the Pope provoked by the French King now ready in the field vexed by his people and himself scarce himselfe summons to defend himselfe themselves M Paris An. 1213. and the Kingdome of England all men that ought to have Armes or may have Armes and such as have no amres and yet arma habere possint let them also come ad capiendum solidatas nostras and accordingly there came a vast number not onely of the Armed men but of the unarmed multitude who afterward were sent to their own home when victuals failed Hitherto therefore King John not above three yeeres before his death held himselfe to the assessment to Armes onely of such as had Lands and at this time of exigency others unarmed were summoned to take Armes from the King with their pay or otherwise they must fight without weapons I am now come to the last generall point which concerneth the executive power of matters concerning the peace within this law touching which the Statute inforceth this that Constables in every Hundred and Franchise shall have the view of Armes and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy whereby it seemeth manifest that hitherto no law or custome was made against any for default of Armes but onely such as held by that tenure and therefore they had a shift to cause them to sweare to maintaine Armes and so might proceed upon defaults as in case of perjury and that the Parliament was still loath to set any certaine rule for penalty and absolutely declined it and left it under a generall periculo incumbente which its likely men would rather eschew by obedience then adventure upon out of a daring spirit unlesse their case was very cleere within the mercy of common reason and therefore such cases were left to speciall order of the Parliament rather then they would deliver such a rod as determining power was over into any uncertaine hand what ever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments order into the directory of Edward the first which thing reacheth farre for then in order thereunto the whole Militia of the Kingdome must have been under his safe command and whether it ever entred into the conceipt of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to us viz. Edw. 1. and from us by our Royall Seignory to defend force of Armes and all other force against our peace at all times that we shall please and to punish according to the laws and usages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound us to ayd as their good Lord alwaies when need shall be Two things are concurrant with this which is the body of the Statute if such it be the one is the preface or the occasion and the second is the conclusion upon the whole body of the same The preface first set down the inscription or direction of the Law not to the people but to the Justices of his bench and so it s in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certaine persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earles and Barons that in all Parliaments treaties and other assemblies which shall be had in the Kingdome of England for ever after all men shall come thereto without force and without Armes well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earles Barons and Cominalty being assembled to advise upon this matter nous eiont dit saith one coppy and nous eions dit saith another coppy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principall one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the bench and there enrolled and this is dated the 30. of October in the seventh yeere of his reigne which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon record in nature of a claime or protestando for saving the prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his owne that it might be more carefully nursed against the blast of time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civill affaires and so referred it to the Kings care to provide against imergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suite with the posture of affaires then in course for the Welsh warres were now intermitted and a quiet of three yeeres ensued in the middest of which Souldiers having liberty to doe nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsell
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