Ang. tit 6. Lindenbr as amongst the Angles it was a law that the inheritance should passe unto the issue males on the fathers side untill the fifth generation before any title could accrew to the issue female and then according to their Proverbe it went from the Lance to the Spindle But the Danes possibly might prevent this in the continuance thereof for they brought along with them that which was formerly the Saxon custome Ll. Sax. tit 7. ibid. Concil Brit. 333. which carried the inheritance unto the daughters upon the failing of the issue male as in the example of Cenedritha daughter to Cenulfus amongst multitudes of others may appeare Ll. Alured Sax. c. 7. But where Lands were conveyed by writing or act of the party it was a maxime that the will of the conveyor should be strictly observed nor could ever any one that came in by vertue of such writing ever alien the Land to crosse the currant of the originall conveyance The entailing of estates therefore was very ancient Plo. com 251. b. although by corrupt custome it was deluded as the Lord Dier in his argument of the L. Berklies case observeth Another custome of inheritance was catcht I know not how it s called Burrough English and by the name may seem to be brought in by some Cynicall odde Angle that meant to crosse the world and yet in a way not contrary to all reason for where nature affords least helpe the wisdome of men hath used to be most carefull of supply and thus the youngest became preferred before the elder in the course of descent of inheritance according to this custome There is no further monument of the antiquity hereof that I have met with then the name it selfe which importeth that it sprang up whiles as yet the names of Angles and Saxons held in comon cognisance might arise first from the grant of the Lords to their Tenants and so by continuance become usuall and by this means also might arise the custome of Copyholds of this nature so frequent especially in those Eastern parts of this Island where the Angles setled and from whom that part had the name of the East Angles Gavel kind Another custome of descent remaineth and that is to the children collectively and it s called Gavell kind or Gave-all kind and by the very name seemeth at the first to arise rather from the donation of the parent or other ancestor contrary to common custome then by common Law otherwise no need had been of an especiall name In the originall it seems it equally concerned all both sonnes and daughters as parceners and for want of such the brothers and sisters It seemeth to be first the Law of the Goths or Jutes Stephanus Dan. Burcus Suel for it remaineth in use in these parts of the Easterne Countries But in later times this estate was also tailed or cut out sometimes to the sonnes and daughters severally that is the sonnes or brothers to have two parts and the daughters or sisters one part other times to all the sonnes and for want of such to all the daughters and thus these courses of estates passed over Seas to the Southern parts of this Island where that people most setled in a double stream the first from the Athenians that loved the statelinesse of their families the other from the Lacedemonians who desired rather the continuance of their familes then their greatnesse Emmius Grec The manner of conveying of estates between party and party was either by act of the party executed in his life time Conveyances in writing or after his death such as were executed in the lifetime of the owner and were such as for the most part were in matters of great moment were estates passing by deed of conveyance in writing and for this way the Saxons were beholding to the Latines who taught them that course Ll. Sax. cap. 37. both for form and language and Alfred inforced it by a particular law viz. that all such as hold Lands by deed in writing should hold them according to the intent thereof and not alien the same contrary thereunto the intent thereof being proved by witnesses The nature of the conveyances in these ancient times may appear by a deed of the Kings of this Island about 400 yeeres before the Conquest whereby he granted foure plough lands in the Isle of Tenet unto an Abbesse wherin instead of that which we now call the habendum Habendum the words are contulimus possidendum c. after that followeth the uses of the deed tuo usui c. Vse and then concludes with a warranty Warranty in these words tu vero successoresque tui defendant in perpetuum nunquam me haeredesque meos contra hanc chartulam aliquando esse venturos the effect of which last clause may appeare by the Law of the sale of goods which in those times was that if the sale of goods warranted did not hold the losse should light upon the seller Ll. Inae c. 74. Ll. Sax. c. 24. Ll. Edw. c. 25. Signed The deeds were usually subscribed with the name of him that made the conveyance or passed the estate and if he could not write his name as it befell often then the Deed was under signed with his marke for Withered King of Kent used the signe of the Crosse in subscribing his grants pro ignorantia literarum They used also in those daies to seale their Deeds Sealed Concil Brit. p. 198. for so much the conclusion of King Ina's Charter to the Abby of Glastenbury importeth in words to this effect in English I Inas the King doe confirm this grant and liberty by subscription of my own hand and under the seale of the holy Crosse True it is Ingulfus tels us that seals to Deeds were of Norman originall I believe his intent is concerning seals of Wax anexed or affixed unto deeds Lastly Witnesses in those daies also they used to attest their Deeds by subscribing the names of such as were present who being of greater or meaner ranke rendred the credit of the Deed accordingly more or lesse valuable Acknowledgement and upon this ground did the acknowledging or proving of Deeds before the King Bishop County or Hundred first arise Livery and Seisin Cragius That was the Roman fashion but the more ancient German way of conveyance was by livery and seisin as most suteable to their ignorance who had learning in as sleight account as the Lacedemonians had and cared for no more then would serve the turn of naturall necessity A property they had both in Lands and goods and where that resteth no man can deny them the naturall way of giving and receiving by delivery And therefore though matters of ordinary use seldome come into the observation of story and this petty ceremony might very well passe sub silentio yet we are not altogether left destitute of the footsteps thereof in
the whole Nation and the King amongst the rest as the Priest that many times rendred the answer or sentence of that Oracle in his own sence and had it confirmed to him by an oath se judicium rectum in Regno facturum justiciam per concilium procerum regni sui tenturum Ll. Edw. cap. 16. so as though he was the first in view yet the Councell of Lords was the first in nature and the Cynosure to direct his tongue and actions From this fountaine issued also streams of judicature into all parts by Judges itinerant under the Kings Commission to reforme errours punish defaults in the ordinary rurall judicatories Miror cap. 5. Sec. 1. ca. 1. Sec. 3. and to dissolve hard and knotty cases and these were occasioned at the instance of the party and Alfred whose birth this was sent them forth in way of Association with the Sheriff Lord of the fee or other ordinary Magistrate CHAP. XXXVI Of the proceedings in Judicature by Indictment Appeale Praesentment and Action FOr the proceedings in course the Saxons were wont to begin with matters belonging to the Church and afterward to secular causes In which if the matters were criminall the most ancient way of proceeding was by appeale of the party complaining but afterwards in cases that concerned dammage injury or violence done to the body of a man or his estate the King was found to be therein prejudiced besides the prejudice immediately done to the subject for a man disabled in body or estate is disabled to serve the King and publique Indictment and upon this ground a way was found out to punish the offender by indictment besides the satisfaction done to the party wronged The proceedings against such delinquents were by attachment of the party Lambert Ll. Inae 15. who thereupon gave pledges for his appearance If the party could not be found a fugam fecit was returned and that was a conviction in Law and pursuit was made after the party by huy and cry If he was thereby taken the ancient way was that of Halifax law but in later times he was imprisoned Ll. Inae Lam fo 7. Ll. Alured cap. 6. Miror c. 2. Sec. 24. Ll. Edw. cap. 4. Miror p. 255. Gloss 335. Miror cap. 5. Sec. 9 10. Ll. Edw. cap. 7. Ll. Canut cap. 45. Miror cap. 2. Sec. 22. or admitted to baile if the offences were baileable and if the party bailed made default or did not abide the triall his baile suffered as principall If no baile could be procured the delinquent was imprisoned till he was legally acquitted but this imprisonment was onely in nature of a restraint If the delinquent was found upon the huy and cry and would not yeeld himselfe he was in repute a common enemy and as a wolfe any man might kill him as the Law was also the same in case of Utlary At the time of tryall if at the Kings suit the delinquent was indicted in this manner by any party present I D.C. do say for the King that I. S. is defamed by good men that he upon day of c. into the house and goods of did cast fire and the same did burn or if it were for bloodshed with a Sword did strike and wound him in the left arme and that this was done feloniously or if the case required trayterously and if I. S. deny the same I will for the King prove the matter against him as the King ought to doe that is to say Appeale Miror cap. 2. Sec. 15â— by witnesses and twelve men But if the complaint was at the suit of the party then the prosecutor sued him upon Appeale in manner following I. C. appealeth D. H. here present for that E father brother sonne or Vnkle according as the case was to I.C. being in the peace of God and of our Soveraigne Lord the King in the dwelling house of E. at c. the said D.H. upon the day of in the yeere of with a Sword made a wound of two inches long and six inches deep in the left pappe of the body of the said E. whereof he died and this was done feloniously and of malice forethought And if the said D.H. shall deny the same the said I.C. is ready to prove the same against him by his body or as a Monk woman or Clerk behooveth to prove the same that is by Champion for neither Monke woman nor Clerke was by Law to justifie by battaile in their own person The severall causes of appeale and indictment may be found in the Law bookes to whom I referre the Reader it not being within the compasse of this discourse to fall upon the particulars I shall onely observe the difference between Indictments former and later and between them and appeales viz. that appeales are positive accusations in the name of the prosecutor of the fact done by the party appealed whereas indictments were onely a publication or affirmation of the fame of a fact done by the party indicted and wherein not guilty pleaded served onely as in nature of a Quere to usher in the votes of the free men Concerning the fact secondly the difference between former Indictments from these in these daies consists in this that the ancient Indictments were in the name of one man those of the later sort are in the name of the Jury and the former were onely of a fame the later of the fact Miror cap. 2. Sec. 23. Presentment A third way of bringing controversies unto judgement concerned onely such matters as were of lesse consequence and these were introduced by way of presentment in the name or behalfe of the King in nature of positive accuse of one for a crime first laid down generally and then asserted by a particular fact in this manner I say for our Soveraigne Lord the King that H. here is perjured and hath broken faith against the King because whereas H. is or was Chancellor of the King and was sworn that he would not sell right or any remediall Writ to any one yet upon the day of c. he sold to B. a Writ of Attaint and would not grant the same under halfe a Marke so as the difference between an Indictment and Presentment in those daies was onely in the degree of crime for which the party delinquent was accused and in the manner of conclusion of the Presentment which was without averment The last way of trials concerns such offences that exceed not the nature of trespasse done to a mans person or his goods Miror cap. 2. Sec. 24. Action and this was by way of Action and it was to obtaine recompence for dammage sustained Now because the former were called personall trespasses the Processe was by attachment of the person who thereupon put in baile or else his person was secured by imprisonment till triall and satisfaction made but in the later that concerned the realty Ll. Aetheldr cap. 20. Ll. Canut c. 10
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
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