any Man he must go whither the King shall please to send him which is not onely destructive to the opinion of Thirning concerning the Plea but also though granted is destructive to the Reporter's Judgement in the main point For if an English man may refuse to go without Wages then is he not bound to go by any natural absolute Legiance as the Reporter would have it And as touching the second Case which is Bigot's and Bohun's Case it cleareth the same thing for it was resolved that they ought to go but in manner and form according to the Statutes then is not the ground in the absolute Legiance for that is not qualified but in the positive Statute-law which tieth onely in manner and form and that by voluntary consent in Parliament The rest of the Cases do neither conclude the main point nor the particular thing that the Reporter intendeth For he would imply to the Reader that English men were anciently used to be imprested for the Wars in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Third's time one Anthority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which do speak one word concerning Impresting And that in Edward the Third doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to go beyond the Sea with the Duke of Lancaster and the Plaintiffs Counsel alledged That the Defendant had been beyond Sea with the Duke and was returned To this the Defendant's Counset answered That the Duke was ready to return again and for this cause the Protection was not allowed Yet a Quere is made upon this ground that it might be that the Defendant would not go over with him nor was it proved that he would which sheweth plainly the party was not imprested for then the thing had not been in his power to will or nill The last instance that the Reporter produceth is that of Forinsecum Servitium or Foreign Service and that seemeth to be Knight-service to be performed abroad But this falleth short of the Reporter's intention in three respects First Though it belongeth to the King yet not to him onely but to other chief Lords so saith Bracton Secondly It is not due from every English man. And lastly It is a Service due by vertue of Tenure and then the Conclusion will be That which is due by Tenure of Lands is not due by natural and absolute Legiance and so this Foreign Service arising meerly by compact and agreement between Lord and Tenant and not by the natural duty of an English-born Subject which is the thing that the Reporter drives at in all his discourse will be so far from maintaining the Reporters opinion as it will evidently destroy the same And thus the posture of this Nation in the Field remaineth regular in the rule whatever hath been said against it notwithstanding that in the very instant of Action there may be some irregularity which no doubt both was and ever will be in stormy times Nor did it conquer the Law For though War may seem to be but a sickness of the State yet being in Truth as the Vltimum refugium and onely reserve unto Law beaten to a retreat by opression it is no wonder if this motion or rather commotion that brings on the Law of Peace in the Rear be still and ever subject to rule of Law how unruly soever it self seemeth to be Now because Law imports execution and that presupposes a Trial and it a Court therefore did our Ancestors amongst other Courts not regulated by the Common Law form a Court for the service of War called the Court-Marshal or the Constables Court according as the Office of one or the other had the preheminence The proceedings herein were ordered as I said not accordiag to the Common Law for that is like the Land much distant from all other Nations and the Negotiation of this Island with other Nations as in time of Peace so of War requires a rule common to all those Nations or otherwise no Negotiation can be maintained And for this cause the proceedings in this Court were ever according to the rule of the Civil Law. The work of this Court is principally Judicial and in some cases Ministerial The first reflects upon cause Foreign and Domestick and both of those are either Criminal and such as concern the common Peace of the place of War or more civil relating onely unto private interest As touching the first of these I suppose it is no Bull to speak of a common Peace in the place of War. For a common Peace must be in each party within it self or otherwise no party at private variance can subsist within it self much less make War with the other and therefore in order unto War there must be a Law of Peace for the Trial of Offenders and punishing them for offences committed against the good Government of the War Such as are breaking of Ranks deserting the Standard running away from the Colours Mutinies Murthers Rapes Plundering-private Quarrels disobedience to command and such-like all which do bear the shew of crimes against the common Peace of the Army and the Country Of the second sort are matters concerning Quarter and Contracts in order to the government of the War saving such as are made before either part be inrolled for the War. For if a man doth covenant to serve in the War and keepth not his day at the first Rendezvouz he is to be attached by Writ at the Common Law. Causes Domestical likewise fall under the like division for whatsoever cause may be Forein may also be Domestick because the Army is ever embodied within the Kingdom and must be under the Directory of the Martial law upon the first forming thereof Now though the particular Laws of the Army for the government thereof be ordinarily according to the prudence of the General yet certain Fundamentals have been ab Antiquo made by Custom and the Parliament against which the course of Judicature must not go And as the Parliament saw need it set also particular directions as for the payment of Souldiers Wages for remedy of wastings and plunderings in their own Country and other such emergencies But the execution of all these Laws Originally was in the Marshal of the Army And because that the Army was generally dissolved or such persons engaged in such matters of controversie departed from the Army before the same were concluded therefore the Marshals Court continued in order to the determining of these matters And in continuance of time other matters also crowded into that Society although sometimes under the Directory of the Constable of England as well as at other times under the Marshal more particularly that power of determining matters concerning Torniament a sport that like a Sarcasm tickles the fancy but
legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia and therefore no man ought to be urged upon such difficulties unless by the express Law of the Land. The old way of Trial was first to bring in a Complaint and Witnesses ready to maintain the same and therefore both Appeals and Actions then used to conclude their pleas with the names of Witnesses subjoyned which at this day is implied in those general words in their conclusions Et inde producit sectam suam that is he brings his sect or suit or such as do follow or affirm his complaint as another part also is implied in those words Et hoc paratus est verificare For if the Plaintiffs sect or suit of Witnesses did not fully prove the matter in fact the Defendant's Averment was made good by his own Oath and the Oaths of Twelve men and so the Trial was concluded No Free-man shall be imprisoned or disseised of his Freehold or Liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peers Nor shall Justice be sold delayed or denied This is a comprehensive Law and made up of many Saxon Laws or rather an enforcement of all Laws and a remedy against oppression past present and to come And concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the Law and his liberty likewise so as he shall be shut into no place by Imprisonment nor out of any place by Banishment but shall have liberty of ingress and egress His Estate both real and personal shall also be under the protection of the Law and the Law also shall be free neither denied nor delayed I think it needless to shew how this was no new Law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the sum of all the foregoing discourse tendeth thereto Merchants shall have free and safe passage and trade without unjust Taxes as by ancient custome they ought In time of War such as are of the Enemies Countries shall be secured till it appear how the English Merchants are used in their Countries That this was an ancient Law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon Laws So as it appeareth that not onely the English Free-men and Natives had their liberties asserted by the Law but also Forreiners if Merchants had the like liberties for their persons and goods concerning Trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the Law as the Free-men had And unto this Law the Charter of King John added this ensuing It shall be lawful for every Freeman to pass freely to and from this Kingdom saving Fealty to the King unless in time of War and then also for a short space as may be for the common good excepting Prisoners Outlaws and those Country-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this Law of free passage out of the Kingdom was not anciently fundamental but onely grounded upon reason of State although the Freemen have liberty of free passage within the Kingdom according to that original Law Sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the Third as was also another Law concerning the Jews which because it left an influence behind it after the Jews were extinct in this Nation and which continueth even unto this day I shall insert it in this short sum After death of the Jew's debtor no usury shall be paid during the minority of the Heir though the debt shall come into the King's hand And the debt shall be paid saving to the Wife her Dower and maintenance for the Children according to the quantity of the Debtors Land and saving the Lord's service and in like manner of debts to others The whole doctrine of Vsury fell under the Title of Jews for it seemeth it was their Trade and their proper Trade hitherto It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times but by the Confessor's Law it was made penal to Christians to the forfeiture of Estate and Banishment and therefore the Jews and all their substance were holden to be in nature of the King Villains as touching their Estate for they could get nothing but was at his mercy And Kings did suffer them to continue this Trade for their own benefit yet they did regulate it as touching Infants as by this Law of King John and the Statute at Merton doth appear But Henry the Third did not put it into his Charter as I think because it was no liberty of the Subjects but rather a prejudice thereto and therefore Edward the First wholly took it away by a Statute made in his time and thereby abolished the Jews Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly In all alienations of Lands sufficient shall be left for the Lords distress Submitting to the judgement of the learned I conceive that as well in the Saxon times as until this Law any Tenant might alien onely part of his Lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord Paramount other than was formerly due to him without the Lord's consent and for the same reason could they not alien the whole Tenancy to bind the Lord without his express license saving the opinion in the book of Assizes because no Tenant could be enforced upon any Lord lest he might be his Enemy Nevertheless it seemeth that de facto Tenants did usually alien their whole Tenancy and although they could not thereby bar the Lord's right yet because the Lord could not in such cases have the distress of his own Tenant this Law saved so much from alienation as might serve for security of the Lord's distress But Tenants were not thus satisfied the Lords would not part with their Tenants although the Tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all saving to the Lords their services formerly due and thus the Lords were necessitated to grant Licenses of alienation to such as the Tenants could provide to buy their Lands Nor was this so prejudicial to the Lords in those days when the publick quiet was setled as it would have been in former times of War whenas the Lord's right was maintained more by might and the aid of his Tenants than by Law which then was of little power The 35th Chapter I have formerly mentioned in the Chapter concerning
the Canon Robbery is finable The different Law between the Saxons Angles and Danes now by the Normans is setled in the more merciful way and in case the delinquent made flight the pledge satisfied the Law for him But in the latter times of Henry the first the Law was again reduced to the punishment of this crime by death and so hath continued There shall be true weights and measures throughout the Kingdom and those shall be sealed And this was the constant Saxon Law. Perjury to be punished by fine and as formerly still inquirable amongst the Crown-pleas CHAP. LI. The like of Laws that concern common interest of Goods IF Cattle be taken by Distress the party that will replevy them shall pay for the return of the Cattle and give security to bring the Distress into the Court if with within a year and a day it be demanded This Law I take to be intended where the Cattle are taken damage feasant because nothing shall release the Distress in other cases but obedience to the Summons No Distress ad comparendum shall be taken but after three several Summons and so many defaults made and in such case Distress shall issue by especial order from the County-court I noted this partly to shew the difference of the Normans from the Saxons in the delay of execution of Justice by so much mean process and partly to shew the difference between the Norman times and these days wherein mens Cattle lie open to the distress of every oppressing or extorting Bayliff or unknown person and no Summons made at all whereby many poor mens Estates are either undone or they must submit to the unjust demands of their adversary No manner of Goods of above four pence in value shall be bought unless in the presence of four Witnesses of the Town And the vendor shall satisfie out of his own Estate if the sale be not effectual and in case the vendor have no warrant for such Goods by him sold. No living Cattle shall be sold but onely in Cities and before three Witnesses nor shall any thing forbidden be sold without Warranty No Fairs or Markets shall be holden but onely in Cities Boroughs Wall'd-Towns and Castles These Laws concerning sales and Markets were ancient Saxon Laws and tend all to the avoiding of cheating men of their Cattle by surreptitious sale of them made by such as had no right Goods found shall be published by the Finder to the Neighbourhood and if any makes claim and proof of them to be his he shall have them giving security to bring them into the Court in case any other shall within a year and a day make his claim thereto The Children of persons intestete shall equally divide the Heritage This is in terminis the Saxon Law and therefore concerning it I shall refer to the same formerly recited onely I shall add hereto the Law of Henry the first which may serve as an explanation of the former Any Freeman may devise his Chattels by will and if he die intestate his Wife Children Parents or next kin shall divide the same for his Souls good The first branch whereof was ancient and doubtless in continual use but the iniquity of the Norman rude times was such that the Lords under surmise of arrears or relief would seize all the personal estate after the Tenant's death and so the right of last Wills was swallowed up but this restoreth the power of last Wills into it's place anâ— in case the party died intestate preserveth a kind of nature of descent although they be more personal Nor doth that last clause of the Souls good disanul the same although the words may seem to carry away the benefit to some other hand For the whole matter is left to the discretion of such as are next to the Intestate CHAP. LII Of Laws that concern common interest of Lands THe Laws that concern Lands and peculiarly belonging to the Normans are such as concern principally the tenure of Lands which if duly considered although savoured somewhat of the King yet little of the Conquerour For generally it must be granted that Tenures long before and after this time were as the services ordered according to the Will of the giver in which as the King had the greatest share and he the most publick person of all so were his Donations ordered chiefly to advance the publick service and in this regard the Tenure by Knight service might more principally challenge the King's regard than the regard of all the great men besides But this was not the sore yea rather it was the beauty and strength of the Kingdom and for which the King deserved an honourable name above most of his progenitors who had not so much Land to dispose of as he had and therefore could not advance that service in any proportion equal unto him The sore that caused so many sighs was the incumbrances raised upon this most noble and free service which through the evil of times by this means became the most burdensome and the onely loathed and abhorred service of all the rest I say through the evil of times for it cannot lodge in my thoughts but that in the Norman times the incumbrances were nothing so great as of latter Ages and that much hath been imputed to the Laws of the Conquerour which they never deserved as may appear in these particulars which the Laws of Henry the First have preserved in memory Tenant of the King or other Lord dying his Heir shall pay no other relief than what by Law is due That which by Law is due is set down in the Laws of William the Conquerour The Relief of an Earl. 8 Horses sadled and bridled 4 Helmets 4 Coats of Mail. 4. Shields 4 Spears 4 Swords 4 Chasers 1 Palfray bridled and sadled The Relief of a Baron 4 Horses with Saddles and Bridles 2 Helmets 2 Coats of Mail. 2 Shields 2 Spears 2 Swords 2 Chasers 1 Palfray bridled and sadled The Relief of a Vovasor to his Lord. His best Horse His Helmet His Coat of Mail. His Shield His Spear His Sword. Or if he had no Arms then he was to pay s. 100 The Relief of the Country-man is the best Beast that is in his possession and of him that farmeth his Lands a years rent These are the Reliefs due by Law and now setled in Goods or Arms but afterwards turned into Money and it is likely that the ill customs in the former times did extort both Money and Arms or such sums of Money as they pleased and by the very words of the Law it seems they had brought it to an Arbitrary power to take what they could get and yet all against Law. The Kings Tenant shall advise with the King in marriage of his Daughter Sister Niece or Kinswoman and his Widow in like manner The sence hereof in short is that these might
time and was questionless put in practice so far forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the King's Court but the Justices must come down to them And yet in case of difficulty the Bench where the Common-pleas are holden must determine the matter and where the time in the Iter in one County is too scant the Remanets shall be adjourned over to be tryed elsewhere in that Circuit which sheweth that the Judges itinerant had their time proportioned out to every County These Tryals also were so favoured as in the then holy times of Advent and Septuagessima or Lent they might be tried which although it was gained by Prayer made by the King to the Bishops as the words of that Law are concluded yet it shews that the Parliament had so much light as to hold the time not inherently holy but meerly sequestred by the Will of the Clergie The Plaintiffs also in Mortdancester may be divers if there be divers Heirs of one Ancestor by one Title And if there be joynt-Tenants and the Writ be against but one and the same pleaded the Writ shall abate but if joynt-Tenancy be pleaded and the Plea be false the Defendant shall be fined and imprisoned And if in the Action the Verdict be for the Plaintiff he shall recover Damages Darrein presentment shall be taken onely in the common Bank. Tryals in the common Bank or other Courts at Westminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally available This might be one cause why the Titles of Churches were still retained at the common Bank whenas all other rode Circuit for that Churches affairs in those times were of high regard Speed of Tryal also was not little regarded herein for Justices by Nisi prius properly were but for enquiry till the Statute at Westm the second made them of Oyer and Terminer in the cases of Quare Impedit and Darrein presentment and gave them power to give Judgment And thus the Commons gained still in point of conveniency Free-men shall be amerced according to the degree of the fault saving to them their Free-hold and to Merchants their main Stock and to Villains their Waynage and Clergie-men shall be amerced according to their Lay-fee Barons shall be amerced by their Peers 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 four Classes Barons Clergie Free-men and Villains But in regard of the parties by whom they are to be amerced they are but two Barons and Free-men for the Clergie Villains and Free-men are to be amerced by the Free-men of the Neighbourhood In what Courts these Amercements shall be the Stat. Marlbr tells 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 onely before the Chief Justices or Justices itinerant The Statute of Westminster adds a fifth Classis of Cities and Towns by express words which seems not so necessary unless in pillaging and oppressing times for they were taken to be within the Statute of Magna Charta though not therein named The rule of the quantity of Amercements is now set down in general and left to the discretion of the Peers or Vicinage which formerly by the Saxons were specially set down in the Law. The rule in general is with a ne plus ultra viz. not further or more than 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 main sustenance of the party is saved yea the Villains however mean they be they must have their maintenance And this sheweth that Villains had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unless they were the Kings Villains who it seemeth were meerly 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 Villains were born under a kind of liberty as in the Saxons time formerly hath been declared which the Law protected against their own Lords No man shall be compelled to make repair or maintain any Bridges Banks or Causies other or otherwise than 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 and more especially of King John those Rivers Waters and Fishings formerly used in common were encroached upon enclosed 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. No Sheriff Constable Coroner or other Bayliff shall hold any Pleas of the Crown Escheators are also expressed in the old books of Magna Charta and the Abridgements however it seemeth that it is within the intent of the Law which was made to avoid the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of Estates of men would enquire of matters concerning the lives of men and Sheriffs that had power of Tryals in cases of Theft as hath been already shewn abused 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 Coroners and Bayliffs or Justices other than by express commission thereto assigned all power to hold Pleas of the Crown by tryal leaving unto them nevertheless power of enquiry of which anciently they had the right If the Kings Tenant dieth supposed in arrear an Inventory shall be made of his Stock 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 first 's time and a customary Law in Henry the second 's time being a remedy against an old Norman Riot of the Lord's seizure of the whole personal Estate of the party deceased under colour of a Law. The second part concerning the overplus hath this additional 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
and Kent are saved out of this Law by the Statute the first whereof saves the Land to the Heir from the Lord and the second saves the same to the Heirs Males or for want of such to the Heirs Females and to the Wife her moity until she be espoused to another man unless she shall forfeit the same by fornication during her Widow-hood And by the same Law also the King had all Escheats of the Tenants of Archbishops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden All Wears shall be destroyed but such as are by the Sea-coast The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the Wears to his own use as appeareth by a Charter made to the City of London recited in the second Institutes upon this Law and this was to the detriment of the Free-men especially of the City of London in regard that all Free-men were to have right of free passage through Rivers as well as through Highways and purprestures in either were equally noxious to the common liberty And therefore that which is set down under the example or instance of the Rivers of Thames and Medway contained all the Rivers in England albeit that other parts of the Kingdom had not the like present regard as the City of London had The Writ of precipe in capite shall not be granted of any Freehold whereby a man may be in danger of losing his Court thereby It seemeth that it was one of the oppressions in those times that if a Suit were commenced in the inferiour or Lords Court concerning a Freehold a Writ of precipe in capite might be had upon a Surmise that the Freehold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoil of the Demandants case and therefore I think the Charter of King John instead of the word Court hath the word Cause There shall be but one known Weight and Measure and one breadth of Cloaths throughout the Realm of England This Law of Weights and Measures was anciently established amongst the Saxons as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John. And as touching the measure of the breadth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudicial to the common Trade of the Kingdom it was setled in this manner to avoid deceit and to establish a known price of Cloaths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the Measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of Life and Member shall be readily granted without Fees. This was a Law of latter original made to take away a Norman oppression for by the Saxon Law as hath been already noted No man was imprisoned for Crime not bailable beyond the next County-court or Sheriff's Torn but when those rural Courts began to lose their power and the Kings Courts to devour Tryals of that nature especially by the means of the Justices itinerant which were but rare and for divers years many times intermitted during all which time supposed Offenders must lie in Prison which was quite contrary to the liberty of the Free men amongst the Saxons This occasioned a new device to save the common liberty by special Writs sued out by the party imprisoned or under bail supposing himself circumvented by hatred and malice and by the same directed to the Sheriff and others an Inquisition was taken and Tryal made of the Offence whether he deserved loss of Life or Member and if it were found for the supposed Offender he was bailed till the next coming of the Justices and for this the Writ was called the Writ of inquisition of Life or Member and sometimes the Writ de odio atia But these Inquests were soon become degenerate and subject to much corruption and therefore as soon met with a countercheck from the Law Or first rather a regulation for it was ordained that the Inquest should be chosen upon Oath and that two of the Inquest at least should be Knights and those not interessed in the Cause But yet this could not rectifie the matter for it seemed so impossible to do Justice and shew Mercy this way that the Writ is at length taken away and men left to their lot till the coming of Justices itinerant But this could not be endured above seven years for though the King be a brave Souldier and prosperous yet the people overcome him and recover their Writs de odio atia again Lords shall have the Wardships of their Tenants Heirs although they hold also of the King in Petit Serjeanty Socage Burgage or Fee-farm Inferiour Lords had the same right of Wardships with the King for their Tenures in Knight-service although their Tenants did hold also of the King unless they held of him in Knight-service which was a service done by the Tenant's own person or by the person of his Esquire or other deputy in his stead But as touching such service as was wont to be done to him by render or serving him with Arms or other utensils this was no Knight-service though such utensils concerned War but was called Petit Serjeanty as in the Law-books doth appear Nevertheless Henry the Third had usurped Wardships in such cases also and the same amongst others occasioned the Barons Wars No Judge shall compel a Free-man to confess matter against himself upon Oath without complaint first made against him Nor shall receive any complaint without present proof This Law in the Original is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in express words it is thus No Judge shall compel any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter enquired after and therefore they used in such cases to put him to Oath and if he denied the matter or acquitted himself the Judge would sometimes discharge him or otherwise put him to his Compurgators and this was called lex manifesta or lex apparens And it was a trick first brought in by the Clergie and the Temporal Judges imitated them therein and this became a snare and sore burthen to the Subjects To avoid which they complain of this new kind of Trial and for remedy of this usurpation this Law reviveth and establisheth the onely and old way of Trial for Glanvil saith Ob infamiam non solet juxta legem terrae aliquis per
Richard the First were made by the consent of Archbishops Bishops Abbots Earls Barons and Knights of the whole Kingdom for what the great men gained they gained for themselves and their Tenants And the truth is that in those times although publick damage concerned all yet it was ordinary for Kings to make a shew of summoning Parliaments whenas properly they were but Parliamentary meetings of some such Lords Clergy and others as the King saw most convenient to drive on his own design And therefore we find that Henry the Third about the latter part of his Reign when his Government grew towards the dregs he having in the Kingdom Two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings but Five and twenty Barons and One hundred and fifty of his Clergy Nevertheless the Law of King John was still the same and we cannot rightly read the Law in such Precedents as are rather the birth of will than reason Fourthly that no aids were then granted but such as passed under the title Escuage or according thereunto for the words are No Escuage shall be demanded or granted or taken but for redeeming the King's person Knighting of his Son or Marriage of his Daughter Nor is the way of assessing in these times different saving that instead of all the Knights two onely are now chosen in every County the Tenure as it seemeth first giving the Title of that Order and both Tenure and Order now changed into that Title taken up for the time and occasion Fifthly that it was then the ancient custom and so used in the time of Henry the First that the advice of those then present was the advice of the whole and that their advice passed for a Law without contradiction notwithstanding the King 's Negative voice for the words are The matter at that day shall proceed according to the counsel of those that shall be present although all do not come and therefore that clause in the King's Oath quas vulgus eligerit may well be understood in the future and not in the preter tense Last of all though not gathered from the Text of this Law whereof we treat yet being co-incident with the matter it is observable that though the Clergie were now in their ruffle and felt themselves in their full strength yet there befel a posture of state that discovered to the world that the English held not the interest of the Clergie to be of such publick concernment or necessary concurrence in the Government of the Kingdom as was pretended For the Clergie finding Assessments of the Laity so heavy and that occasions of publick charge were like to multiply daily they therefore to save the main stock procured an Inhibition from Rome against all such impositions from the Laity and against such payments by the Clergie and in the strength of this they absolutely refuse to submit to aid Edward the First by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them divided from it and not onely outed of all priviledge of Parliament but of all the priviledge of Subjects into the state of praemunire and thus set up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry the Third not satisfied with this ancient and ordinary way of Assessment upon ordinary occasions took up that extraordinary course of Assessment upon all the Freemen of the Kingdom which was formerly taken up onely in that extraordinary occasion of redeeming of the King 's or Lord's person out of captivity and common defence of the Land from piracy and under the Title of Dane-gelt which was now absolutely dead and hanged up in chains as a monument of oppression Nevertheless it cannot be denied but that in former times the Freemen were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the Law aforesaid of King John doth appear and whereby it is probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the Third the same suiting also with the third observation foregoing doth not a little favour the same for it is expresly set down that in lieu of the King's confirmation of the Charter of Liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earls Barons and Knights but also the Freemen and all the Kingdom gave a fifteenth of all their moveables And thus have I summed up and compared both the Copies of the Grand Charters of Englands Liberties saving two particulars inserted into the Forest-Laws of Henry the Third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the Third might as he was advised plead nonage and so they might have been choaked in their birth but being all Consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much blood-shed and themselves into so many troubles to avoid their own acts unless the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loth to publish the same to all men It is a strange vanity in great men to pretend love to Justice and yet not endure to be bound thereto whenas we see that God himself loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the Third of this spirit fain they would undo but could not It is true it was at the first but a King's Charter of Confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be avoided but by surrender from the whole body Having thus summed up the Liberties of the Subjects and Free-men of England under this Charter I shall make some Appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand Charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these Prerogatives above all Lords The King shall have the custody of Fools and Ideots Lands for their maintenance and shall render the same to their Heirs And concerning Mad-men and Lunaticks the King shall provide a Bailiff for their maintenance rendering account to them when they are sober or to their Administrators It is no less liberty or priviledge of the People that Fools and Mad persons
for the most part are but for enquiry All which saving the Justices itinerant in ancient use were instituted about these times and therewith ended both the work 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 several persons some sitting upon the Common-pleas others upon the Crown-pleas The Judges of these journeying Courts were specially assigned by the King as in the case of the Gaol-delivery or setled by the Law upon the Judges of both Benches at Westminister as in case of Oyer and Terminer 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 Now concerning the Courts that were setled some were setled or annexed to the King 's personal residence as the Chancellor's Court for in these times it began to have a judiciary power of eminent stature and growing out of the decays of the great chief Justice of England Then also the Kings-Bench was annexed by the same Law unto the Kings Court or personal residence 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 original onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places because the Kings attendants were many in those times whenas the Courts of Justice continually attended on his person and this precinct was called the Verge and all cases of debt and covenant where both parties were of the Houshold 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 rural and affixed also to some certain 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 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 illegal and the County-Courts held their right till this Law was made which kept under those inferiour Courts and made them of less account than formerly Nevertheless the Kings Justicies or Writ to the Sheriffs oftentimes enableth the inferiour Court to have cognizance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations Fairs 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 shall be chosen in the County from the wisest greatest and chief men of the Country Of these Officers formerly hath been spoken as touching their election qualification and work this Law brought in no change of any former Law but onely of a former Custom gained by these degenerating times which brought men into place that were far unfit who otherwise of poor 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 holds these men to their work of taking Inquests and Appeals by Indenture between themselves and the Sheriff and these were to be certified at the next coming of the Justices The Free-holders in every County if they will shall elect their own Sheriff unless the Sheriffwick be holden in Fee. This was indeed the ancient custom as the Officers of the Kingdom were elegible by the Common-council of the Kingdom so were all the Officers of the County chosen by the County But within a few years 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 appear for though at the first blush it may seem a priviledge lost by the Freemen 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 days of Edward the Second it was no time for him to gain upon the peoples Liberties Nor had the Statute of Articuli super cartas whereof we how treat been penned with these words if they will. And questionless in these days 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 chief Officers were better disposed in some other hand if rightly pursued Homicide by misfortune shall not be adjudged murder 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 unless 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 loss of Member to death and forfeiture 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 days Robbery punished by death This crime hitherto was punished by fine and loss of member at the utmost but is now made capital and punished with death One example whereof and the first that Story maketh mention of we find of an Irish Nobleman in the days 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 Civil War in a Nation who value their Estates and Liberties above their own lives Rape upon the complaint of the party violated made within forty days shall have right If the Delinquent be convicted without such complaint made he shall be fined
recollection of the Laws thus ensue In case of Robbery or Felony committed and the Delinquent be not forth-coming or discovered the County or Hundred shall answer the damages Of this more may appear from the Norman and Saxon Laws the intent appeareth by the Law it self to stir up the people to use all means by pursuit with Hue and Cry and making inquisitions of the Fact with all speed in Townships Hundreds Franchises and Counties Persons suspected shall not be entertained or harboured by any Inhabitant unless he will undertake for him Of this also formerly both in the Norman and Saxon Laws Walled Towns shall keep their gates shut from Sun-set to Sun-rising The like observed in Cities Burroughs and Towns from the Feast of Ascension 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 Sheriff and if an escape be made the party is to be pursued with Hue and Cry. These two last Chapters were in effect in Henry the third's time in course by way of the King's command by Writ in the 36th and 37th years of his Reign with some more particulars concerning the same High-ways through every Lordship shall be kept clear on each side by the space of 200 foot from Hedges Ditches Bushes and Vnderwood High-way herein intended are such as are from one Market-Town to another and in such were always preserved the publick peace or safety for the maintenance of Commerce and freedom of Traffick which is of such publick concernment that it hath been of very ancient institution Every man between the age of fifteen years and forty shall maintain Arms in his house according to the ancient Assize for the preserving of the Peace This Chapter brings into consideration the second thing propounded viz. the means of preserving of the Peace which are two First by maintaining Arms 2. By certifying Defaults In the first is to be considered the persons that are to be assessed 2. The Arms 3. The end The persons to be assessed to Arms are indefinitely set down and comprehend all sorts as wel bond as free and others for such are the expressions in the Commission of Henry the third 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 years and forty but by the Commission in Henry the third's time all between fifteen and sixty years of age were to be armed King John arrayed all sorts free bond and all others that have Arms or ought to have or can carry Arms and it seems by what hath been formerly noted that those that were younger than their Tenure would bear them out were accepted into service if they would offer themselves but by these courses they though under one and twenty years of age were not onely accepted but compelled to War. Under this Title we may also touch upon the persons that were the instruments to array these men or rather to arm them and these were Justices itinerant or one or more Commissioners such as the King found most meet of 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 and to go into every Hundred and call before them all such persons as by the Law ought to be assessed at Arms and to cause them to be sworn to find and maintain Arms in such manner as by the Law they then should be or formerly were assessed and sometimes the establishment of Arms were set down in those Writs and sometimes published by Proclamation For Kings found all means little enough to prevail to bring in alteration of Arms and of their service which was a thing not onely troublesome but chargeable and whereunto they could not easily prevail to bring the Free-men to consent And therefore sometimes the endeavours of Kings in such cases did not onely meet dilationem but also deletionem as the Historian's words are until 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 Tenures into such as held by Knight-service and such as held by Socage and that none but those being Free-holders could be charged to find Arms according as by the Laws of the Norman Conquerour may appear The establishment of Arms for the Knights were established by their Tenures in certainty and therefore no need was either of Assessment or Oath to tie them to find such Arms but all the difficulty was for such as were not bound by other Tenure than as free-born Subjects all of whom do owe to their Country defence and so questionless had liberty to provide themselves of such Arms as were by common and constant use held most advantageous against the common Enemy and for the publick defence And that these were put in certainty may appear by the Law of King William formerly noted and by some instances in the Saxon Laws anciently used amongst others that Law of Aethelstane That for every Plough every man should find two compleat Horses And another Order of Aetheldred nigh eighty years aster differing from it assessed upon every eight Hides of Land a Helmet and a Coat of Mail And the Historian tells us That a Hide is a Plough-Land or so much Land as one Plough can keep in till the end of one whole year And the relief of the Noble-men of all sorts and ranks in Horses Helmets Coats of Mail Lances Shields and Swords the meanest of all which degrees being called Mediocris Thainus yielding a relief equal to the Arms of a Knight in the times whereof we now treat viz. one Horse one Helmet one Coat of Mail one Lance one Shield one Sword all comprehended under arma sua as if he had a certain proper Arms. And the Laws concerning the forfeiture of Arms do in effect affirm the thing viz. that all men were armed yet probable it is that laws were not then so often made for the enforcing this or that particular sort of Arms in regard that till the Normans time this Island was troubled but seldom with any Enemies from foreign parts that brought any new sorts of Weapons into fashion the Danes and Norwegians being no other than an old Acquaintance of theirs Neither were the Saxons as yet tamed by any Enemy so far as to beg a Peace albeit that the Danes had gotten them under But after the Norman times the English being somewhat over-matched in War inclined more to Husbandry and began to lay aside their regard of Arms and this occasioned the Kings to make Assessments of
not a Fine is set upon them if others run away from their Conduct a Writ issued to the Serjeant at Arms to apprehend them if they were not arrayed then the Recognizances of such as undertook the work are estreated All plunder or spoil committed by the Souldiers in their Conduct was to be satisfied by the Conductor or Commander that received their Pay or Charges for their Conduct And although the Charges for Conduct had formerly de facto been defrayed sometimes by the County by virtue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the Third claim any such duty but disclaimed it and ordained by Act of Parliament That both the Pay and Conduct-money should be disbursed by the King from the time of their departure from their several Counties For to this end and for the safeguard of the Realm and for the maintenance of the Wars of Scotland France and Gascoign the King had supply from Aids Reliefs Wardshipâ— Marriages Customs and Escheats Nor did the Parliament grant any particular Aid by the Assessment or publick Tax but when they evidently saw the burthen of War to be extraordinary as it befel in the Conquest of so great and potent a Realm as France was Wherein although the Taxes were many yet so well ordered were they and with that compliance from the King that the people endured them with much patience so long as the King lived Lastly in all these Cases of Foreign Wars for of such Cases onely these Laws are to be understood it was especially provided That no man should be distrained or urged against his will to go out of his County But in case of defensive War the course was otherwise for all men in such cases are bound by the Law of Nature to defend their own Country from Invasion in order to the safety of their own Estates and Habitations They were arrayed or gathered together by Commission of Array from the King armed according to the Laws formerly mentioned and not by Arbitrary order of the Commissioners And by virtue of such Commissions they were drawn forth and led to places where need required Sometimes to one Coast sometimes to another yet not altogether at the Kings pleasure for the Parliament upon occasion set rules of Restriction and generally exempted the North-parts beyond Humber from being drawn Southward and left them as a reserve for the defence of the Marches bordering upon Scotland and sometimes ordered the Array should be executed onely in some particular Counties and other times wholly exempted the County adjacent within six miles of the Sea-coast And because the King might under colour of a defence array the people where no such occasion led the way and command them out of their Counties a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Books in print whether determinatively or carelesly I cannot tell but all of them to differ in sence one from another and from the Truth Some of the common Books have the words thus None shall be distrained to go out of their Counties unless for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdom Others read it thus But where necessity requireth and the coming of strange Enemies into the Kingdom The Kings Answer to the Parliaments Declaration concerning the Commission of Array would read it thus Vnless in case of Necessity or of sudden coming of strange Enemies c. But the words in the Roll are these Et que nulls ne soient distresses d'aller hors de les Countees si non pur Cause de necessity de suddaine venue des Stranges Enemies en Reyaulme In English thus word for word And that none be distrained to go out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdom which words determine the point That none shall be by Commission of Array drawn out of their County but in case of necessity And secondly that this case of necessity is onely the coming of strange Enemies into or in the Kingdom so as probably the Invasion must be actual before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publick note and common fame foregoing for then the ordinary course either of Parliament or otherwise must be used to call those that are bound by Statute or Tenures or Voluntiers to that service seeing every Invasion is not so fatal as to require a Commission for a General Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvin's Case lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to go with the King in his Wars as well within the Realm as without and this Legiance he telleth us is that natural Legiance which he saith is absolute and indefinite c. and not local which if not so then were not the English bound to go out of England an inference that is neither necessary nor is the thing affirmed certain It is not necessary because English men may be bound to go out of England by vertue of their Tenures particular Contract or else by special Act of Parliament and not by vertue of that natural Legiance which in truth is nowhere Now for the maintenance of the point the Reporter alledgeth two Statutes affirming the thing and common practice and lastly Authorities of the Judges of the Common Law. As touching the Statutes one in Henry the Seventh's time and the other in Edward the Sixth's time I shall speak of them in the succeeding times when we come at them for they are no Warrant of the Law in these times whereof we now treat much less is the modern practice of these later days a demonstration of the Law in the times of Edward the Third nor of the nature of the Law in any time seeing that it is obvious to times as well as particular persons to do and suffer things to be done which ought not so to be and therefore I shall for the present lay those two Considerations aside But as touching the Opinions of the Judges of the Common Law two Cases are cited in the Affirmative which seem in the Negative and the rest conclude not to the point The first of the two Cases is the opinion of Justice Thirning in the time of Henry the Fourth word for word thus A Protection lies for the Defendant in a Writ upon the Statute of Labourers and yet the Defendant shall not have such matter by way of Plea viz. That the King hath retained him to go beyond the Sea for the King cannot compel a man to go out of the Kingdom that is as the Reporter saith Not without Wages intimating thereby that if the King shall tender Wages to
rest looked to the Provisors more strictly than his Predecessors had and not onely confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annual Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute And further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Laws had saved the right to the true patron both against Pope and King. And thus the English Kings were Servants to the Church of England at the charges of Rome whilst the Popedome being now under a wasting and devouring Schism was unable to help it self and so continued until the time of Henry the Sixth at which time the Clergie of England got it self under the power and shadow of a Protector a kind of Creature made up by a Pope and a King. This was the Bishop of Winchester so great a man both for Birth parts of Nature Riches Spirit and Place as none before him ever had the like For he was both Cardinal Legate and Chancellor of England and had gotten to his aid the Bishop of Bath to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First More craftily by colloguing with the Nobility who now had the sway in the Kings Minority but they would none An answer is given by the King that he was too young to make alterations in matters of so high concernment yet he promised moderation The Clergie are put to silence herewith and so continue till the King was six years elder and then with Money in one hand and a Petition in the other they renew their suit but in a more subtile way For they would not pretend Rome but the English Churches Liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy See but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Laws Their Clonclusion therefore is a Prayer That the King will please to allow the Jurisdiction of their Ecclesiastical Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependant on the See of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might endanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergie are put to a retreat from their Reserve at Rome all which they now well saw yet it was hard to wean them The Cardinal of Winchester was a great man and loth to lay down his power but his own Tribe grew weary of him and his power For the greater some Church-men are unless they be better than men the inferiour and better Church-men are worse than men At length therefore the Cardinal is Vnlegated and that power conferred upon the Archbishop of Canterbury a man formerly well approved but by this very influence from Rome rendred suspected Which he perceiving protested against the exercise of the Jurisdiction Legatine without the Kings allowance and so mannerly crept into the Chair The English Kings and Clergie having thus attained the right discerning of each other begin to take up a new way of policy which was to hold nothing of the Popedom but the Form of Worship and Discipline but as touching Jurisdiction they held it a high point of wisdom either to fetch it nigh at home or to be silent in the matter having now found a main difference between the Popes Will and the Church-Law and therefore as formerly the Convocation and Parliament joyned in excluding of Foreigners from Church-livings under the notion of Intelligencers to Enemies abroad So neither now will they allow any provisions for English men and upon this ground the Dean and Chapter of York refused to admit the Bishop of Lincoln to the See of York although assigned he was thereto by Pope Martin and he the darling of Nations being by joynt consent advanced to the Triple Crown that had been formerly tripled amongst three Popes and troubled all Europe And whereas during the Tripapalty much money had been levyed here in England to serve for the recovery of the Popedom to one of English interest now by joynt consent the same is seized upon and stopped as fewel from the fire and spent by Henry the Fifth in the recovery of a Kingdom in France that should have been employed in recovery of a Popedom at Rome These things concurred to give a wound to the Popedom that was never cured to this day Nevertheless the English Clergie was no loser by all this but gained in the whole sum For as it made them more depending on the Crown so it made the Crown more fast to them from which they had received more real immunities and power than the Pope ever did or was able to give them and might expect to receive many more What personal respects these three Kings shewed them hath been already touched Henry the Sixth added one favour which made all the rest more considerable Hitherto they had used to meet in Convocation as upon the interest of Rome and little notice was taken of them now the Nation owns them and in some respects their work and it is granted That the Clerks of Convocation called by the Kings Writ and their Menial Servants shall have such priviledge in coming carrying and going as the Members of the Parliament have So as though they be not Members yet they are as Members if they assemble by the Kings Writ and not onely by the power of the Legate or Metropolitan The antiquity of this Court is great yet not so great as hath been supposed nor is it that Court of the Ordinary called the Church Gemot mentioned in the Laws of Henry the First as not onely the works thereof therein set down do sufficiently declare but also it is evident that in Henry the Second's days the Grand Councils of this Kingdom were joyntly mixed both of Clergie and Laity Nor could the Clergie shut the Laity from their Councils till about the times of Richard the First or King John. From which time forward the Laity were so far from protecting of them that till these times now in hand all their care was to keep them from violating the Liberty of the people That they were many times notwithstanding called together by the Kings Writ before these times hath
Canon And upon this account the King's Ancestors had possessed themselves of the Cells in the hands of Foreigners in times of War and now a deadly feud is stirred between Henry the Eighth and the Pope their holy Father The Children cannot expect to thrive whenas their Father is cast out of doors and so all must out together Yet the manner is observable they must not be cast out but must go out the inferiour and greater part are dead persons have learnt obedience they can neither bark nor bite and therefore they may sleep and what is done must be done with such of them as are alive Upon a Visitation these are brought under the Test and found in such a condition that they had better give way and voluntarily surrender than abide the Trial. Once more the smallest are picked out whilst the greater stand by and wonder but either do not foresee or in despair of altering the King's Resolution do nothing but expect the sad hour which within Four years comes upon them all every one of them chusing rather to surrender and expect the King's Mercie for maintenance during life than adventure against the dint of his Justice and Power and so lose all for they were ill befriended amongst all sorts of the people Thus came the personal Estate and Stock of these Houses to the Kings immediate Treasury and their yearly maintenance to the disposing of the Crown Which might have advanced the same well-nigh to the value of Two hundred thousand pounds yearly but that the King intended to let the people enjoy the fat as well as he that they might be mutually engaged to maintain hold of the Prey that they had joyntly gotten Out of all which nevertheless the Crown had a small rent or service annual for the acknowledgement of their Tenure besides the First-fruits of Spiritual Dignities and the Tenths both which he formerly had already obtained The first whereof was but casual and occasional in the payment arising onely at the entrance of the party into his Promotion and which was gained by the Pope from Edward the First although at his Parliament at Carlisle in his Thirty fourth year he withstood the same This was above Three hundred and twenty thousand pounds in the whole sum The latter was Annual and amounted to above Thirty thousand pounds And thus the Popes Usurpations are turned into duties to the Crown but were much lessened in regard that these Cells and Monasteries were accounted amongst these Ecclesiastical Promotions which by their dissolution fell off in that account Nevertheless the advancement that might by a parcimonious King have been made of the fall of this Cedar was such that the Crown might have been rendred of it self absolute and all-sufficient But Henry the Eighth was not thus minded the Affairs of Europe were gotten into a high pitch Princes generally over-active Henry the Eighth inferiour to none of them what comes in goes out and he is a rare example of that divine Proverb As Riches increase so do the Mouths of them that eat he still stands in need of his peoples Love Purses and Power So Divine Providence orders the matter that Kings can never attain further end of their undertakings without the aid of the people than their labour lest they should be too big to be Christians and the people too mean. CHAP. XXVIII Of the condition of the Parliament in these Times THey are no good Expositors that consider their Text by piece-meal onely nor they good Historians that will tell you the bare Journal of Action without the Series of Occasion Such as these will speak much of the actions of Henry the Eighth what advancement he brought to the Crown and make a compleat Monarchy wherein the King may act what he resolveth resolve what he pleaseth and please what he lusteth whenas in truth the thing is nothing so For though many of his actions in relation to particular persons cannot be justified by any Law so in truth did they never proceed from any Law but meerly from the passion or will of the man and connivance of the people who could bear that from this King that their Ancestors would never endure under any other And yet in all the grand concernments of the Nation the Law kept still upon the top nor did the King enter into any competition therewith or lead the way thereunto other than by especial allowance of the Parliament For first It is evident though the King was Supream Head of the Church yet this was not like the head of a mad man led by phancy without the Law of reason or reason of Law But it was defined circumscribed and formed thereby with Qualifications and Limitations as hath been already expressed in the former Chapter Seondly It is no less clear that the Legislative Power rested in the Parliament and not in the King when he was in his greatest height For as Head of the Church he had no such power in Church-matters or if he had such a right it was taken away by the Acts of Parliament Nay when the Pope was yet possessed of this Headship the Parliament did determine the manner of the Worship of God in some particular cases as in the keeping of the Lord's Day the Statute of Edward the Fourth to the Honour of God did provide for the observing thereof and to the Honour of God it was taken away by a Statute in the time of Henry the Eighth if the words of either Statute may be believed But more especially after that this Headship was translated to the King the Parliament provided that the Canons should be examined and allowed by the King and Thirty two persons one part of the Clergie the other of the Temporalty chosen by the King. And those that shall be assented unto and confirmed by the King and the Thirty two persons or the Major-part of them shall be obeyed and put in execution the residue shall be void Provided nothing shall be done against the Kings Prerogative or the Laws and Customs of this Realm So as the King had much but he had not all and what he had the Parliament gave him by a Law that was executory all the days of Henry Eighth by divers continuances and was not any power devolved to the Crown under the Title of Supremacie nor by vertue of the Act of Parliament concerning it but by the continual influence from the Parliament upon the Crown as well before that Act as after derived upon it The King hath then this right of Law making but it is with the Thirty two he hath it but not his Successors And lastly he hath it but by a derivative power from the Parliament and a Committee for that service And in a word he hath the Power but the Parliament hath still the Law of that Power The second Priviledge of the Parliament hitherto concerneth onely Laws concerning Church-Government In the next place cometh to be considered
shipped over the Popes power to the Chair of Canterbury and had made a Pope instead of an Archbishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost we come in the next place to observe First they had still their Courts and Judicatory power but upon what right may be doubted Their first foundation was laid by the Civil power of a Law in the time of William the first Norman King yet the power of the Pope and Bishop growing up together they came to hold the power of the Keys by a Divine Right and so continued until these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewn and many seem to change their Tenure and therewith therefore are in right to change the Style of their Courts and Title of Summons but the times not being very curious and the work of reformation but in fieri the more exact lineaments must be left to time to finish and beautifie A greater blow did light upon the Law of these Courts which was left as doubtful as the Canons all which are now put to the question and to this day never received full resolution but were left to the Parliament to determine them at leisure and in the mean time to the Judges of the Common Law to determine the same Lawful or Unlawful as occasion should require Nevertheless the Courts still hold on their course according to their old Laws and Customs for their form of Proceedings some say by Prescription yet more rightly by Permission it being a difficult matter to make Prescription hold against a Statute-Law As touching the matters within their Cognizance the Law setled some and unsetled others First As touching Heresie the Church-men formerly thought scorn the Lay-Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civil Magistracy so by degrees arose the penalties of Imprisonment and Burning which brought the whole matter into Cognizance before the Civil Magistrate because no Free man might be proceeded against for loss of Life or Liberty but by the Laws of the Nation and for this cause the Civil Magistrate granted the Writ of Habeas Corpus and relieved many times the party imprisoned wrongfully or granted Prohibition as they saw cause And therefore it cannot be said rightly that the sole or supream Cognizance of this crime of Heresie belonged to the Clergie before these times Nor did their proceeding upon the Writ of Burning warrant any such thing partly because till these times the Canon-Law was the best ground that these proceedings had and the course therein was not so uniform as to permit the Title of a Custom to warrant the same Conviction being sometimes by Jury sometimes according to the Canon sometimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before special Delegates as the Histories of the Martyrs more particularly set forth and no Act of Parliament positive in the point But the time is now come when nighest Reformation that the thing is setled more to the prejudice of Reformation than all the endeavours foregoing like to the darkness of the Night that is at the Superlative degree when nighest break of Day A Statute is now made that indeed quite blotted out the very name of the Statute of Henry the Fourth De Haeretico comburendo but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5 both which were formerly neither good in Law nor effectual otherways than by Power and gave more settlement to the Ordinaries proceedings in such Cases For the Delinquent might be convict before the Ordinary by Witnesses or might be indicted at the Common Law and the Indictment certified to the Ordinary as Evidence Yet did the Parliament carve them out their work and in express words declared That Opinions against the Authority and Laws of the Bishop of Rome were not Heresie and by the same reason might have done more of that kind but that was enough to tell all the world that the Parliament could define what was not Heresie although they did not then determine what was Heresie And thus the judgement of the Romish Church is called into question in one of their Fundamentals and the Clergie left in a Muse concerning the rule upon which they were to proceed against this crime The Parliament within six years after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publick Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the Trial to be before Commissioners by Jury or Testimony of two Witnesses or by examination in the Ecclesiastical Court or inquisition in the Leet or Sessions of the Peace Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie but the Parliament determined such Heresies as were punishable with Death and Forfeiture by enumeration in the six Articles This was the Clergies Primer wherein they imployed their study as making most for their design and laid aside thoughts of all other Heresies as dry notions or old fashions laid aside and not worthy the setting forth to the common sale Secondly The Lesson concerning Marriage was no less difficult for the Clergie to take out They were put by their former Authority derived from abroad and their ancient rule of the Canon-Law With the Kings leave they do what they do and where they doubt they take his Commission So did the Archbishop of Durham in the Case between John and Jane Fisher In the Kings Case the determining part is put to the Parliaments conclusion and for a rule in other cases some persons are enabled to marry which formerly were not viz. Masters of the Chancery and Doctors of the Civil Law and some forbidden Marriage as all Priests by the Statute of the six Articles And unto the rest concerning degrees of Consanguinity or Affinity a particular enumeration is appointed to be observed within which Marriage is declared unlawful all other further off are made lawful In all which regards the Cognizance of Matrimonial Causes is theirs onely by leave Thirdly Residency and Non-residency was a Theme formerly learned from the Canon-Law in which as also in the thing it self the Clergie were the onely skilful men The rule of the Canon-law was strict enough considering the times but it was not â—â—eel to the back The Parliament now undertakes the Cause and though it gave in some respects more liberty than the Canon yet stood it better to its tackling and kept a stricter hand upon the reins than was formerly used and by giving a general rule for Dispensation took away all arbitrary Dispensations and Licenses which were formerly granted beyond all rule but that of Silver or Gold