CHAP. I. Of the BRITONS, and their Government.

THIS is Britain, or rather that part thereof, in after-ages called Saxony and England, from the peoples Names transplanted thither. The Bri­tons (to lay aside all conceipts of Fame) I take to be an issue of the Neighbouring Nations, from the German and Belgick shores; induced hereto, partly by the vicinity of the Names of he People, Caes. com. lib. 5. Cities, or Towns and Places, but more of their Manners and Customs, both in Religion and Civil Government. Tacit. Anal. 14. Barbarians they were, Amian. lib. 15. and so esteemed by the Romans, that were but refined Barbari­ans themselves, Caes. com. lib. 6. Tacit. and yet they worshipped an Invisible, Infinite, Omnipo­tent God by Sacrifices: but the greatest part of their reverence fell short, and rested upon their Priests, whom they accounted the only Secretaries that God had on earth, feared their interdict worse than death itself, and (in these times of uttermost darkness) held them forth to neighbouring Nations, to instruct them into an higher excellency than that of brutish men.

In their civil Government they allowed preeminence of their Magistrates rather than Supremacy, and had many chiefs in a little room; the Romans called them little Kings, for the greater renown of their Empire. But others of more sobriety account them no better than Lords: Caes. com. lib. 5. Of liberties, not much exceeding those of a City; and these (though in time of peace [Page 2] independant upon each other, yea perpetual Enemies, yet) in time of For­reign War, joyned together to chuse one Head to command them all, ac­cording to the custom of the Germans, Lib. 6. as Caesar noteth. But that which yet cleareth the matter, is the testimony of Dion in the Life of Severus the Emperour, who expresly saith, That in Britain the People held the Helm of Government in their own power. So as these were not Kings, nor their Govern­ment Monarchical, and yet might be regular enough, considering the rude­ness that in those days overspread the world. True it is, that by a holy man this Nation was in latter times of Barbarism, Hieron. called Tyrannorum gens, the word being taken mitiori sensu, or from a common repute of excessive cruelty, or oppression by Superiours. As touching their Cruelty, I find no footsteps in story: Somewhat reflecteth upon their Sacrifices, as if they offered Mans flesh; Caes. com. 6. but that was common to the Gauls, who borrowed their Religion from Britain; and it might be founded rather upon an er­ror in judgment, than savageness of nature. Much less cause doth appear of any cry of oppression upon inferiours, but rather against that; as the multitude of Kings or Lords do manifestly witness, who being observed in the time of Julius Caesar, continued in Tiberius his time and afterwards, until in the Reign of Claudius 'tis said, that Caractacus ruled over many Nations. For it is a certain Maxim, that though great Nations may be upholden by power, small Territories must be maintained by justice; with­out which, the door will be soon set open to the next passenger that comes; especially where the people are bent to war, as these were, and therein had attained such exquisite perfection of skill in Chariot-service, as must needs convince us of their much experience against themselves, in regard that to other people it was scarce known; no, nor yet to Caesar himself, that had been practised in the Wars of all Nations. And this is all that I can produce out of story, touching the Government of Britain, before the en­try of that light that lightneth every one that cometh into the world.

CHAP. II. Concerning the Conversion of the BRITONS unto the Faith.

IT was long before the Son of God was inwombed, and whiles as yet Providence seemed to close only with the Jewish Nation, and to hover over it, as a choice picked place from all the earth, that with a gracious eye surveying the forsaken condition of other Nations, it glanced upon this Island; both thoughts and words reflected on Isles, Isles of the Gentiles, Isles afar off, Isa. 42. 4. 51. 5. 60. 9. 66. 19. as if amongst them the Lord of all the earth had found out one place that should be to him as the Gemme of the ring of this Terre­strial Globe: and if the ways of future providence may be looked upon as a gloss of those Prophecies, we must confess that this Island was concei­ved in the womb thereof, long before it was manifested to the world.

To recover the forgotten ways of past providence, is no less difficult, than to search out the hidden bowels of future promises; and therefore I shall not busie my self to find out the particular instruments that brought Gods presence into this dark corner, but only glance at the time and man­ner, that it may appear we were not forgotten, nor yet lost, or least in mind, at that time of the dispensation of this grace unto all men. I dare not instance as Gildas, the certain time of six years; yet I may say, that no sooner was the Scepter departed from Judah, but with a [Page 3] swift pace, both it and the Law-giver came hither like an Arrow flying through other Countries, but sticking with a ne plus ultra in this Island, (then a People rather than a Commonwealth) as if we were the onely White that then was in God's aim. It's probable in the highest degree that the work was done within the first Century, and very nigh about the Apostolick times; for that in the second Century Britain was a Church of Fame, and known to the Fathers that dwelt afar off, even to Tertul­lian and Origen, and in short time had outreached the Roman confines in that Island, Tertul. adv. Judaeos. (which had cost them above two Hundred years Travel) and was grown to the state of the first Christian Kingdom that ever was. Unto which, if we shall allow time for the gathering and growth thereof unto this Royal pitch, proportionable to the half of that which afterward was spent in the like work, upon the Saxon and Danish Kings, we must in reason conclude that the work was first ordered by Apostolical dire­ction, or some of their Emissaries. Customs also do not obscurely de­clare Ages. For before that Pius Bishop of Rome began to speak in the big Language of Decrees, it was indifferent to keep Easter either upon the day observed by the Roman Church, or on the day according to the Jews custom: Platina de vit. Eleuthe. and although the Roman Church began within fifty years after the death of John the Evangelist, to stickle to impose their custom upon other Churches; yet the Church of Britain conformed not to that course by the space of five Hundred years after that time; Bed [...] l. 5. c. 25. which refle­cteth probability, that the Church was there setled in times of indifferen­cy, not by Roman Order, but by some other purposed Messenger.

The manner yet is more remarkable; for that not onely Principalities and Powers, and Spiritual Wickednesses in high places, (which are but Stumbling-blocks) but also natural wisdom of the Druides (who were Masters of the Consciences of the Britons, and their high conceit of their excellency above the ordinary strain of men, and unto which the Cross of Christ is meer foolishness; and above all, the deep obligement of the People unto these their Rabbies, in a Devotion beyond the reach of o­ther Nations: All these, I say) stood in the way, and rendred the people more uncapable of any new Light. But when the time fore-set is fully come, all Mountains are laid low, and double-folded Doors fly open; and this Conquerour of all Nations attempts Britain, not in the Rear, nor by undermining, but assails them in their full strength, presents in a clear Sun-shine that one true Sacrifice of God-man; at the appearing whereof, their shadows of many Sacrifices of mans flesh fly away. And thus those Druides that formerly had dominion of the Britons Faith, be­come now to be helpers of their joy, Origen. hom. 4. Ezek. and are become the leaders of the blind people in a better way, and unto a better hope; and held forth that Light which through Gods mercy hath continued in this Island e­ver since, through many Storms and dark Mists of time, until the pre­sent Noon-day.

CHAP. III. Of the entry of the Romans into Britain, and the state thereof during their continuance.

THis conversion of the Druides was but the first step to that which followed, Psal. 2. 3. for the Decree was more full of grace, than to make [Page 4] this Isle to be only as an Inne for him to whom it was formerly given for a possession. The Romans are called into the work, under whose Iron yoak, God had subdued all Nations, thereby more speedily to bring to pass his own conquest, both of that one Head, and all its Members. The first Caesar had entred Britain before the Incarnation, and having seen and sa­luted it, and played his prize, returned with the same only of Conquest of some few Lordships neighbouring to the Belgick shore; Tacit. and so it continued correspondent to the Romans, or rather forgotten of them, till the time of Claudius the Emperour; who being at leisure to bethink him of the Bri­tons Tribute, Vit. Agric. or rather aspiring to honour by a way formerly untroden by his Ancestors, first setled Colonies in Britain, and brought it into the form of a Province, and ingaged his Successors in a continual War to per­fect that work, which outwearied their strength at last, and made them forego the prey, as too heavy for the Eagle to truss and carry away.

It oft befals, that things of deformed shape are nevertheless of excellent spirit, and serve the turn best of all: and it is no less remarkable, that this tide of Roman invasion, however it represented to the world little other than a tumour of vain-glory in the Romans, that must needs be fa­tal to the Britons liberty and welfare: yet by over-ruling providence it conduced so much to the Britons future glory, as it must be acknowledg­ed one of the chief master-pieces of supernatural moderatorship that ever this poor Island met with. First, he taught them to bear the yoke, to stoop, and become tractable; for stubborn spirits must first stoop under power, before they will stoop to instruction. But this onely in the way, for tractableness, if good ensue not, is of it self but a disposition for evil. Secondly, it brought into Britain the knowledge of Arts and Civility; and questionless it was a wise policy of Agricola, Tacit. vit. Agric. to go that way to work; for it is an easie and Royal work to govern wise men, but to govern fools or mad-men, is a continual slavery; and thus Religion already setled in Britain, became honoured with a train of Attendants and Handmaids. Thirdly, they reduced the number of little Lordships nigher to the more honourable estate of Monarchy: for the Romans, by dear experience, find­ing no stability or assurance in what they had gotten, so long as so many petty Kings had the rule; they wisely brought the whole into one Pro­vince (because it is much easier to govern many subordinate each to other, than co-ordinate one with another) over which they allowed one chief, to rule the people according to their own Laws, saving their service to the Romans and their Lieutenants, until they were necessitated to yield up all to the next occupant. This served the British Church with a double inte­rest. The first, Religion spreads sooner under one uniform Government, than under variety; and under Monarchy rightly ordered, rather than any other Government whatsoever; albeit that other Governments may afford it faster footing when it is entred. Secondly, Rome was a renowned Church throughout the world for gifts and graces; and it is obvious to conceive, that it was specially purposed by Divine Providence to make that place a Fountain, that from thence the knowledge of Christ might convey it self joyfully with the influence of Imperial power, as the spirits with the Blood, into all Nations of that vast body.

Above one hundred years were spent in this Provincial way of Govern­ment of Britain, under the Roman Lieutenants; during all which time, Religion spread under ground, whiles the Roman power in a continual war sprang upward. Nor is it strange that Religion should thrive in War: the French Wars in Edward the Thirds time, brought much of this hap­piness [Page 5] to England from the Waldenses; and Germany had no less benefit by the wars of Charles the Fifth with the Italians, French and Turks: and thus the Romans levened with the Gospel, by exchanging men with Britain, and other mutual correspondencies, insinuated that leven by degrees, which in the conclusion prevailed over all.

For the Roman Lieutenants having gotten sure footing in Britain, stee­red their course with a different hand; generally they were of the Roman stamp, seeking to kill Christ in the Cradle; and by that means Religion met with many storms of bitter persecution, and so was compelled to bear a low sail: but some being more debonaire, and of wiser observation, soon found, that the way of justice and gentleness had more Force in Britain than Arms, and so endeavoured to maintain that by moderation, which they had gotten by labour and blood; as it is ever seen that where conquest is in the van, gentleness follows in the rear, because no Bow can stand long bent, but at length must give in and grow weak. And thus by con­nivance, the Britons got a little more scope, and Religion more encourage­ment, till it became acquainted with the Roman Deputies, began to treat with the Emperours themselves, and under the wise government of Aureli­us the Emperour mounting into the British Throne, Crowned Lucius first of all Kings with the Royal Title of a Christian.

He now not so much a Vassal as a Friend and Ally to the Romans, and perceiving the Empire to be past noon, and their Lieutenants to comply with the Christians, began to provide for future Generations, and accor­ding to the two grand defects of Religion and Justice, applied himself for the establishment of both.

Religion in Britain hath hitherto been for the most part maintained by immediate influence from Heaven. No Schools, no Learning, either maintained or desired; the want whereof, together with the persecutions stirred up by the Emperours, especially Domitian, brought the Church to so low an ebb, that the Sacraments ceased: for Histories tell us that Lucius sent to Rome for relief, and that the Bishop of that place (whether Evari­stus or Eleutherius) sent over Learned men to Preach and Baptize both King and People; M. Westm. an. 181. and this, Rome might probably gain some Honour, although possibly the King intended it not, or much less to acknowledg any Authority or Power in that Church, over that of Britain. This act of Lucius so advanced him in the opinion of Writers, that they know not when they have said enough. Some will have him to be the instrument of the first entry of Religion into this Isle; others, that he setled a form of Church-government under the three Archbishops of London, York, and Caerlion upon Vske, and 28 Bishopricks: the first of which is cried down by many demonstrative instances; nor can it consist with the second, nor that with it, or with the truth of other stories. For it neither can be made out that Lucius had that large circuit within his Dominion, nor that the title of Archbishop was in his daies known; and 'tis very improbable that the British Church was so numerous, or that Religion in his time was over­spread the whole Island: nor is there any mention in any Author of any Mo­numents of these Archbishops, or Bishops of Britain, for the space of 200. years after this King's reign, and yet no continual raging persecution (that we read of) that should enforce them to obscure their profession, or hide their heads; or if such times had been, it would have been expected that Bi­shops in those daies should be in Britain, (as well as in other places) most fa­mous for gifts and graces, and pass in the forefront of persecution. But we find no such thing; no not in the rages of Dioclesian, which made the [Page 6] British Church famous for Martyrs: Writers speak of Alban, Amphibalus, Aron, Julius and a multitude of Lay-people, but do not mention one Bi­shop, nor Presbyter, M. Westm. an. 303. nor other Clergy-man, but quendam Clericum, a man it seems of no note, and of unknown name. In Charity therefore the English Church in those daies must be of mean repute for outward pomp; and to liftedup to that height of Archbishops, when as Rome it self was content with a Bishop.

Somewhat more probable it is, that is noted by Writers concerning Lucius his endeavour to settle the Commonwealth and good Laws for Go­vernment, and to that end did write a Letter to Eleutherius, Bishop of Rome, for a Model of the Roman Laws; probably being induced thereun­to by the splendor of the state of the Roman-Church and Commonwealth, the onely Favorite of fame in those times through the Northern parts of the World. Things afar off, I confess, are dim, and it is meet that Anti­quaries should have the honour due to great after-sight: And therefore I might think (as some of them have done) that the Epistle of Eleu­therius to King Lucius is spurious, if I could imagine to what end any man should hazard his wits upon such a Fiction, or if the incongruities charged against it were incurable; but being allowed to be first written in Latine, and then translated into British for the peoples satisfaction, and in that Language (the Original being lost) traduced to posterity; and then by some Latine Writer in after-ages returned into Latine, and so derived to these times (all which very probably hath been;) such occa­sions of exceptions well arise by mistake of Translators and Transcribers in ignorant times, and the substance nevertheless remain entire and true. Considering therefore that the matter of that Epistle savoureth of the purer times of the Church, Cic Attic. 2. and so contrary to the dregs of Romulus, I mean, the policy, practice, and language of the Roman Clergy in these latter ages, wherein this forgery (if so it be) was made; I must allow it to pass for currant for the substance, not justifying the syllabical writing thereof.

To others it seemeth needless and vain, that Lucius should send for a model to Eleutherius, when as the Roman Deputies and Legions at home might have satisfied the Kings desire in that particular, or their own ex­perience might have taught them grounds sufficient, after two hundred years converse with the Romans, that they should have little needed a model for that which they saw continually before their view, or might have un­derstood by inquiry of their own acquaintance. But what could be ex­pected of rough Souldiers, concerning form of government of a Common­wealth? or if some exceeded the ordinary strain in policy, yet they were too wise to communicate such Pearls to conquered Nations, that ought to look no higher than the will of the Conquerour, and subsist in no better con­dition than may be controlled by the Supream Imperial Law of the Lord Paramount; or if in this they had corresponded to the desires of the Bri­tains, yet being for the most part ignorant of the main, they could ne­ver have satisfied the expectations of a Christian King, who desires such a Law as may befriend Religion, and wherein no man was more like to give direction than Eleutherius, who seeing a kind of enmity between the Roman-Laws, and Christ's Kingdom, sends to the King a fair refusal of his request, upon this ground, that Leges Romanas & Caesaris semper re­probare possumus. He saw that they were not well grounded, he there­fore refers the King to the sacred Scripture, that is truth itself. Laws that come nighest to it are most constant, and make the Government more easie for the Magistrate, quiet for the People, and delightful to all; be­cause [Page 7] mens mindes are setled in expectation of future events in Govern­ment, according to the present rule; and changes in course of Govern­ment, are looked at as uncoth motions of the Celestial Bodies, portending Judgements or Dissolution. This was the way of humane wisdom; but God hath an eye on all this beyond all reach of pre-conceit of man, which was to make England happy in the enjoying of a better Law and Government than Rome, how glorious soever then it was; and to deliver that Island from the common danger of the World; for had we once come under the Law of the first Beast, as we were under his Power, we had been in danger of being born Slaves under the Law of the second Beast, as other Nations were, who cannot shake it off to this day.

But Lucius lived not to effect this work; it was much delayed by the evil of the times, nothing was more changeable. Then the Emperours grew many of them so vitious, as they were a burthen to Mankind; nor could they endure any Deputy or Lieutenant that were of better fame than themselves had. Some of them minded the affairs of the East, others of the North, none of them were ad omnia. And the Lieu­tenants in Britain, either too good for their Emperour, and so were soon removed; or too bad for the people of the Land, and never suffered to rest free from Tumults and Insurrections: So that neither Lucius could prevail, nor any of his Successors; but passing through continual cross flouds of Persecutions under Maximinus, Dioclesian, and Maximinianus, and ma­ny Civil Broiles, till the times of Constantine, at length the Haven was attained.

For Constantine having overcome Maxentius, and gotten thereby into the highest Orb of Government in the Empire; reflected such an amiable as­pect upon the Churches, especially in Britain, as if he had intended to pay to them all that God had lent him. A wise Prince he was questionless; yet towards the Church shewed more affection; endeavouring to reduce the Government in every place unto the Roman Prototype, and therein added much honour to that See, especially to Pope Sylvester, whose Scholar he had been. This may seem a sufficient inducement to perswade, that he was the first Patron of English Prelacy, seeing we find it in no approved testimony before that time, nor was it long after, when as the presence of the British Bishops are found at the Synod by him called at Arles, Concil. Brit. 42. viz. the Bishops (not Arch-bishops) of London and York, and the Bishop of Maldune, and those in no great pomp, if the relation be true, that by rea­son of their poverty they were not able to undergo the charge of their Journey and Attendance; so as it seems they had but new set up, and had not yet found out the right way of trade that the Bishops had attained. And thus God ordered first the setling of a Government of the Church in Britain, and its Liberties, before the Secular part enjoyed any; therein working with this Nation, as with a man, making him to be bonus homo before he can be bonus civis.

The Church of Britain thus set together, is wound up for motion; they soon learned the use of Synods from that Synod at Arles, if they had it not before: and took as much power to themselves in their Synods as in other Countries were used, and somewhat more to boot. For they had the hap to continue in Britain in free course, a full century of years, before the Civil Magistrate had any other power, but what was wrapped up under the allowance of their Romon Masters; who like, Gallio, looked upon the Church-affairs as out of their Sphear, and therefore cared for none of those things; or if the zeal of any See far prevailed, it was much [Page 8] in favour of the Bishops, upon whom the Emperours began to dote as Oracles; and this raised the price of the Clergy, and taught them the way to fish for themselves. No wonder it is therefore if Synods in Bri­tain, or rather the Clergy in the Synods, (which probably were then the representative Body of the Nation) swayed all that was free from the Roman-Magistracy, and in some things out-reached their Limits, especially during the interim wherein the Romans held the Arms of civil Magistra­cy bound, and let the Clergy have their scope, that soon began to be am­bient, and conceit a new Idaea of deportment, like that of the second Beast in its Infancy. Nor did the Britons espy their danger herein, for they had been used to idolize their Druides, and it was no more but facing a­bout to do as much for their Bishops.

Of this power of Synods I shall propound but three Presidents, and so draw to a Conclusion of what I think meet to note concerning the Bri­tish affairs. I supose it will not be doubted but that publick Consultations concerning the publick Government of any Place or Nation, ought not to be called but by the Supream Power; and that such Consultations are to be directed by that Supream Power. The Britons had a King, and yet without his consent they call a Synod against the Pelagian Heresie, M. Westm. An. 446. Beda. Lib. 1. cap. 17. and chuse a Moderator from beyond the Sea, and by that Synod not one­ly overwhelmed the Heresie, but excommunicated their King. This was a National Synod, and might well stand with the rule of State, which then had seated the Supream Power in the People, as I formerly noted out of Dion. But it could be no warrant for that which followed, viz. that a Country Synod should excommunicate a King, as it befel in the the cases of Moris and Morcant: or that such a Synod should intermed­dle in matters of Meum and tuum, Concil. Brit. p. 49, 62, 382. Concil. Brit. 385 as in the case of Loumack, who having invaded the patrimony of the Church, the Bishop of Landaff, in a Synod of his Clergy, enjoyned him Penance. And the like befel unto Brock­vaile, who was compelled by the Synod to make amends to Civiliack Bishop of Landaff, for injury to him done: Which I note not by way of imputation; for this exorbitancy (if so it were) might correspond with these Times, wherein very probable it is, that Justice could not be had elsewhere. And had the Clergy been as careful of Holiness, as in the former cases they seem jealous for Justice, Britain must have had the re­pute of a Nation of Priests and Holy men, rather than of Tyrants: where­as it was become a glut of wickedness, and a burden that God would endure no longer: Gildas. Which rendereth their Synod liable to Exception, as being such as were either lifted up, or drawn aside; and as the List to the Cloath, sheweth that the Nation stood in need of that instruction, which with a strong hand God wrought into them by the sad Calamity which ensueth.

CHAP IV. Of the entry of the Saxons, and their manner of Government.

WAsted with time, and wounded by eternal doom, the glory of the Western Empire going down apace, now draweth nigh unto its everlasting night; and that vast body (not able longer to subsist, but dying by degrees) abandons this Isle of Britain its utmost limit, and last inliven­ed, [Page 9] to subsist alone miserably, or else to die. The choice was more diffi­cult by how much the more England was much wasted in the Roman Wars, the flower of their strength spent in Forraign service, the remainder but few, and these exceeding vicious; and which was worst of all, ingaged by the Romans in a War with the Picts, against whom the Romans them­selves found it too burdensome for some of them to hold out, without the help of a Wall: and albeit that the very name of an old Servant of four hundred years continuance, might have moved a Roman heart to commi­serate, yet their spirits fail, and forsaken England must now go into the wilderness, and naked as they are, endure the brunt of the cold storms of the Northern Picts, without any shelter but the hidden will of God then frowning upon them. In this condition, they half desperate, seek for a cure in reason worse than the disease. For it had been better for them to have stooped to hard conditions with the Picts, considering they were all but one people, and differing only by the breadth of a wall, than to call in a new people whose qualities they were ignorant of; and at the best to make them their companions, who might prove (as they afterwards did) both Lords and Masters over them. But there is no reason against God's will. The Britons needed present help, Amian. l. 16. they overlaid by invasions from the Picts (who soon espied the Romans gone, and their own advantage) sent for aid where they were most like to speed for the present, and left the fu­ture to look to it self. Ireland was nigh, but we find nothing concerning their interest in shipping; the French Coasts were not their own men, be­ing yet within the Roman Line: and none were at liberty, but such as were never subdued by the Romans; Zossimus hist▪ lib. 3. only the Saxons are in the thoughts of the Britons, a mighty people not far off, able to mate the Romans in their chiefest pride; and though in a manner Borderers upon the Roman world, yet unsubdued by them, used to the Wars, mighty at Sea, and now given over by the Romans in a plain field, were at leisure, and so well knew the way to Britain, that the Romans intituled the Coasts of Norfolk and Suffolk the Saxons Coasts, from the many visits that the Saxons had alrea­dy made into those parts, Amian. lib. 28. 30. full sore against the Romans wills.

I hold it both needless and fruitless to enter into the Lists, concerning the original of the Saxons; whether they were Natives from the Northern parts of Germany, or the Reliques of the Macedonian Army under Alex­ander. But it seems their Government about the time of Tiberius was in the general so suitable to the Grecians, Suffrid. Petrus Fris. antiquit. lib. 3. cap. 1. as if not by the Reliques of Alex­anders Army (which is generally agreed, emptied it self into the North) yet by the Neighbourhood of Greece unto these Nations, it cannot be ima­gined, but much of the Grecian wisdom was derived into those parts, long before the Romans glory was mounted up to the full pitch; and because this wisdom could never be thus imported, but in vessels of mans flesh, rig­ged according to the Grecian guize, it may be well supposed, that there is some consanguinity between the Saxons and the Grecians, although the de­grees be not known. The people were a free people, governed by Laws, and those made not after the manner of the Gauls (as Caesar noteth) by the great men, Caes. Com. but by the people; and therefore called a free-people, be­cause they are a Law to themselves, and this was a priviledge belonging to all the Germans, as Tacitus observeth, in cases of most publick conse­quence, de majoribus omnes; Histor. Germ. Plutarch. vit. Solon. & Ly­curg. like unto the manner both of the Athenians and Lacedemonians in their Concio. For which cause also I take the Gauls to be strangers in Blood unto the Britons, however nigh they were in ha­bitation. That some matters of action (especially concerning the publick [Page 10] safety) were by that general vote concluded and ordered, seems probably by their manner of meeting with their weapons. But such matters as were of less concernment, Albinus Sax. 72. the Councel of Lords determined de minoribus Principes, saith the same Author. Their Country they divided into Counties or Circu­its all under the government of twelve Lords, like the Athenian territory under the Archontes. Xenophon. These (with the other Princes) had the judicial power of distributive justice commited to them, together with one hundred of the Commons out of each division. Tacit. The Election of these Princes with their Com­mission, was concluded inter majora by the general Assembly, and they ex­ecuted their Commission in Circuits, Emius. like unto the Athenian Heliastick or Subdial Court, which was rural, and for the most part kept in the open aire. In brief, their judicial proceedings were very suitable to the Athenian, but their military more like the Lacedomonian, whom above all others in their manners they most resembled. In their Religion they were very devout, sa­ving that they much rested in the reverence they bare to their Priests, whom they made the moderator of their general Assembly, their Judge, Advocate, and Executioner in Martial Law; therein submitting to them as unto Gods instrument. They worship an invisible and an infinite Diety; mans flesh is their Sacrifice of highest account: and as often as they make inquiry by lots, they do it with that solemn reverence as may put all the Christian world to the blush, precatus Deos, caelumque suspiciens; and this done by the Priest of the Town, if it be in publick causes, or otherwise if private, then by the master of the Family; so as they had Family-worship as well as pub­lick. These things I note, that it may appear how nigh these invited guests resemble the old Religion of the Britons, and how probable it is, that this Island hath from time to time been no other than as a Sewer to empty the superfluity of the German Nations; Avent. Anal. Bowr. 1. 10. Beuter. in Tac. 125 and how the influence of these old principles doth work in the fundamental government of this Kingdom, to this present day. These are the instruments chosen by God, and called by the Britons to be their deliverers from their Enemies, which they did in­deed; yet not swayed thereto by love of Justice or compassion (for if writers say true, Amian. they were no better than high-way-men both by Sea and Land) but by their love of spoil and prey, and by the displeasure of God against a dissolute people. They profess friendship nevertheless in their first entrance; but espying the weakness of the Britons, and feeling the strength of the Picts, and finding the Land large and good, they soon pickt quarrels with their Hoast, made peace with the Picts, and of fained Friends, becoming un­fained Foes to the Britons, scattered a poor remnant of Christians, some to the furthest corners of the Kingdom, others into forrain Nations, like so many Seeds men, to sow the precious Seed of Life in a savage soil. And those few that remained behind, profiting under much misery, by their doctrine and good example yielded better blessings unto their new-come guests than they either expected or desired. And thus the miseries of poor Britain became riches of mercy to the North and Eastern people; and the ruines here, the foundations of many famous Churches else-where. Nor yet was mercy from the Britons utterly taken away, nor their blood drawn out to the last drop, or their name quite blotted out of the book of fame: for whereas two things make men miserable, viz. the heaviness of the bur­den without, and the failing of the heart within, and Gods ordinary way of redress of the former beginneth in taking away the latter; thus dealt he with the Britons. For in danger, as want of strength breeds fear, and that (by extremity) despair, so despair oftentimes revives into a kind of rage that puts strength forth beyond reason; I say beyond reason, for cause can­not [Page 11] not be given thereof, other than Gods extraordinary dispensation in a judi­ciary way, when he seeth the stronger to wax insolent over the weaker. Thus the Britons fled from the Picts so long as they had any hope of relief from the Saxons; but being become their Enemies, and pursuing them to the low-water mark, that in all reason they must either drink or bleed their last; then their courage revived, and by divers Victories, by the space of 200 years, God stopped the hasty Conquest of the Saxons. The result whereof, by truces, leagues, commerce▪ conversation, and marriages be­tween these two Nations, declared plainly that it was too late for the Sax­ons to get all; their bounds being predetermined by God, and thus decla­red to the world. In all which, God (taming the Britons pride by the Saxons power, and discovering the Saxons darkness by the Britons light) made himself Lord over both people in the conclusion.

CHAP. V. Of Austin's coming to the Saxons in England. His Enter­tainment, and Work.

DUring these troublesome times, came a third party that wrought more trouble to this Isle than either Pict or Saxon, for it troubled all. This was the Canonical power of the Roman Bishop, now called the Universal Bishop. For the Roman Emperour having removed the Impe­rial residence to Constantinople, weakned the Western part of the Empire; and exposed it not only to the forrain invasions of the Goths, Vandals, Herules, Lombards, and other flotes of people, that about these times, by se­cret instinct were weary of their own dwellings; but also to the rising power of the Bishop of Rome, Naucler. 505. and purposely for his advancement. Who by patience out-rode the storms of forrain force, and took advantage of those publick calamitous times to insinuate deeper into the Consciences of distressed people, that knew no other consolation in a plundred estate, but from God and the Bishop, who was the chief in account amongst them. The power of the Bishop of Rome thus growing in the West, made him to out-reach not only his own Diocess and Province, but to mind a kind of Ecclesiastical Empire, and a title according thereunto; which at length he attained from an Emperor fitted for his turn; and that was enough to make him pass for currant in the Empire. But Britain was forsaken by the Roman Empire above 153 years before: So as, though the Emperor could prefer his Chaplains Power or Honour as far as his own, which was to the French shore; yet Britain was in another world under the Saxons power and not worth looking after till the plundering was over, and the Saxon affairs setled; so as some fat may be had. Then an instrument is sought after for the work, and none is found so far fit to wind the Saxon up to the Roman bent as a Monk, that was a holy humble man in the opinion of all, but of those that were so in the truth, and knew him. This is Austin, sent by Pope Gregory to do a work that would not be publickly owned. It was pretended to bring Religion to the Saxons in England; therefore they give him the title of the Saxon Apostle; but to be plain, it was to bring in a Church-policy, with a kind of worship that rendred the Latria to God, and the Dulia to Rome. The Saxons were not wholly distitute of Religion, and that, Greg. Epist. lib. 5. Epist. 59. Gregory himself in his Letter to Brunchilda, the French Queen, confesseth, Indicamus, saith he, ad nos pervenisse Ecclesiam Anglicanam velle fieri Christi­anam; [Page 12] so as there was a good disposition to Religion before ever Austin came, and such an one as rang loud to Rome. But far more evident is it from the Saxons keeping of Easter more Asiatico, which custom also continued after Austins coming fifty years, Bed. hist. lib. 3. cap. 25. sore against Austins will. The dispute between Coleman and Wilfride bears witness to that; and it had been a miraculous ignorance or hardness, had the Saxons, a people ordained for mercy (as the sequel shewed) conversed with the Christian Britons and Picts above 150 years, Bed. hist. lib. 1. cap. 23. without any touch of their Religion. If we then take Austin in his best colour, Lib. 3. cap. 4. he might be said to bring Religion to the South-Saxons, after the Roman garb; Bed. hist. lib. 1. cap. 27. and his hottest disputes about Easter, Tonsure, the Roman supremacy; Lib. 2. cap. 2. and his own Legatine power, and his worthy Queries to the Pope, shew he regarded more the fashion than the thing; and the fashion of his person, more than the work he pretended; for he loved state, and to be somewhat like to the Legate of an Universal Bishop; Greg. Epist. l. 7. Epist. 13. 7. and therefore of a Monk he suddenly becomes a Bishop in Germany, before ever he had a Diocess, Concil. Brit. 92. or saw England; and after he perceived that his work was like to thrive, he returned, and was made Archbishop of the Saxons, before any other Bishops were amongst them; Bed. hist. lib. 1. cap. 29. and after three years had the Pall, with title of Supremacy over the British Bishops that never submitted to him.

His advantages were, first his entrance upon Kent, the furthest corner of all the Island from the Britains and Picts, and so less prejudiced by their Church-policy; and at that very time interessed in the Roman air above all the other Saxons: for their King had Married a Daughter of France, one that was a pupil to Rome, Bed. hist. lib. 1. cap. 25. and a devout woman; she first brought Au­stin into acceptance with the King, who also at that present held the chief power of all the Saxon Kings in this Isle, Greg. Epist. lib. Epist. 59. which was now of great efficacy in this work; for where Religion and power flow from one spring to one stream, it is hard to chuse the one, and refuse the other. And thus Rome may thank France for the first earnest they had of all the riches of England, and we for the first entrance of all our ensuing bondage and misery. Au­stin had also a gift or trick of working miracles, 2 Thes. 2. whether more suitable to the working of Satan, or of God, I cannot define. It seems they walked onely in the dark; for either the Britons saw through them, or saw them not; nor could Austin with his miracles or finess settle one footstep of his Church-poliy amongst them; happily they remembring the Roman Dagon, liked the worse of the Roman woman; and the rather because the Carriage of their Messenger was as full of the Archbishop, as it was empty of the Christian. I would not touch upon particular passages of action, but that it is so remarkable, that Austin himself, but a Novice in comparison of the British Bishops (the clearest lights that the Northern parts of the world then had, and unto whom the right hand of fellowship was due by the Roman Canon) should nevertheless shew no more respect to them at their first solemn entrance into his presence than to Vassals. I would not but note the same as a strong argument that this whole work ab initio, was but a vapour of Prelacy. This the British Bishops soon espied, and shaped him an answer suitable to his message, the substance whereof was afterward sent him in writing by the Abbot of Bangor, and of late published by Sir Henry Spelman, as followeth:

[Page 13] BE it known (and without doubt) unto you, that we all, and every one of us, are obedient and subject to the Church of God, and to the Pope of Rome, and to every godly Christian, to love every one in his degree, in perfect Charity, and to help e­very one of them, by word and deed to be Children of God: And other obedience than this I do not know to be due to him whom you name to be Pope; nor by the Father of Fathers to be clai­med or demanded. And this obedience we are ready to give and pay to him, and to every Christian continually. Besides, we are under the government of the Bishop of Caerleon upon Uske, who is to oversee under God over us, and cause us to keep the way spiritual.

This was the Britons resolution, and they were as good as their word; for they maintained the liberty of their Church five hundred years after this time; and were the last of all the Churches of Europe that gave their power to the Roman beast; and Henry the Eighth, that came of that blood by Teuther, the first that took away that power again. Austin having met with this affront, and perceiving that the Britons were stronger in their Faith than he by his Miracles, cast about to try the Saxons courtesie; that what the Ephod could not, the Sword wrapt up therein should. I say not that he procured, but he threatned or prophesied the destruction of the Monks of Bangor; Bed. hist. lib. 2. cap. 2. and it came to pass, and the accasion by writers loudly suspected. Nevertheless the Saxons were not so zealous of their new Re­ligion, as to make a new National quarrel between the Britons and them­selves, but left the game to be played out by Austin; Concil Brit. fol. 111. who finding by ex­perience that it would not prove the work of one man, left it to successors to work out by degrees in efflux of time. And thus Austin, neither good Servant to the Servant of Servants, nor good Monk, retires to settle his Saxon province, and to present, or rather to prostitute it to the lusts of that red Whore; which was the general piety of those ignorant times.

CHAP. VI. Of the Imbodying of Prelacy into the Government of this Kingdom.

I Cannot think that the platform of the mystery of iniquity (when boiled to the height) was ever fore-seen, or in the aim of the wicked spirits on Earth, or those in Hell. Yet were they all instruments of this monstrous birth, filled with subtilty and mischief, guided principally by occasion, and over-ruled by the Justice and Wisdom of God, to make a yoke for Mo­narchs, and a scourge to the world for their refusal of the government of Christ, until this Monster came to perfection; and wherein themselves were feloes de se, and wrought their own mischief. For Austin coming in as a third Proprietor with King and People, and having gathered the ma­terials of a Church, reason told them that a form of government must be setled in that Church. The Saxons had no principles of their own (for they had no learning) and to go to the Britons for a pattern might be [Page 14] ignoble; and where the choice is small, Tacit. mor. Serm. it is soon made. Rome held now the most part of the Churches of Europe at School; the Saxons soon resolve, Rome that had been their Mother, shall be also their Father: And thus at one draught they drank up a Potion of the whole Hierarchy of Rome from, the Pope to the Apparator, with a quicquid imponitur & imponetur, which was of such lasting efficacy, that it ceaseth not to work even to this day, al­though it was slow in the first operation. For the Saxons had a Common-wealth founded in the liberty of the people; and it was a masterpiece for Austin and the Clergy, so to work, as to remain members of this Com­mon-wealth, and yet retain their hearts for Rome, which was now grown almost to the pitch of that Antichrist. For reason must needs tell them, that the Saxon principles would not suffer them to be ad omnia for Rome, nor the Roman Canon allow them to be wholly Saxon; and they faw plainly that the times were too tender to endure them to be declarative on either part; and therefore they chose a third way, which was to preserve the municipal Laws in moderation towards the Canon, and to that end to endeavour such a temper upon the State as must admit them to be in re­pute, such as without whom the Common-wealth could not well subsist, no more than a body without a soul; and that few occasions should befal, but (at least in ordine remoto) must reflect upon both, and then all reason will bespeak them to joyn in the legislative power and government of this Kingdom; but especially as Bishops, who are now Magnae spes altera Romae, and the very top-flowers of wisdom and learning. And unto this temper the Saxons were sufficiently prepared and inclinable; for it was no new thing for them to admit their Heathenish Priests into their general mee­tings, and allow them much power therein; and then it is but the person changed, and they must do as much for their Bishops, now they are be­come Christian; especially themselves being all for the field, and over­grown with a general ignorance, the common disease of those times. Kings were in no better condition: it was hard for them to be Baptized, and not to be Baptized into Rome, and commonly under such a Covenant as though many might repent of, yet none durst amend: For whenas the Pope is Lord of the Consciences of the people, the Kings power may sometimes out-face, but can never govern: the Saxon Kings were there­fore fain to make a vertue of necessity, and advance Bishops to be com­mon favorites both of Rome and themselves, to maintain good corre­spondency between both Swords; and to countenance the power of the temporal Magistrate in cases of dispute, else he oftentimes might command, and yet go without. Thus entred the Prelates upon affairs of Kings and Kingdoms, and became lovers of Lordships, and troublers of States; and if in any thing they served their Country, they served Rome much more; their merchandise was made of the policies and Counsels of all Kingdoms and States, and such returns proceeded as were still subservient to the Ro­man interest; and they intoxicated the domestick counsels in such man­ner, as they generally staggered, and many times came short of home. Nevertheless, at the first this was but rare, clancular, and covered with much modesty; for (excepting such choice spirits as Austin had) Roman Prelacy in these younger times was but Velvet-headed, and endured not much greatness or big titles, but spake like a Lamb; Ego non verbis quaero prosperari, sed moribus, said this Gregory to the Alexandrian Bishop, who had put upon him the title of Universal Bishop or Pope: and whereas he had in a way of Courtship called Gregories Counsels commands, Greg. Epist. ad Eulog. he startles, at it; quod verbum jussionis, saith he, peto a meo auditu removeri, quia scio [Page 15] quis sum & qui estis. Thus Prelacy first conveyed it self into opinion, afterwards into conscience; and ambition coming in the rear, made it be­come both Bishop and Lord.

CHAP. VII. Of Metropolitans in the Saxons time.

BEing in pursuit of the Government of this Kingdom in elder times, and therein first of the persons with their relation, then of their work, and lastly of their Courts and Laws, and now in hand with the Ecclesiastical persons, I shall descend to their particular ranks or degrees, and shall shew what they were in their original, and what overplus they had by Laws. And first concerning the Metropolitan. In his original, his Office was to visit the Bishops, admonish and exhort them▪ and in full Synod to correct such disorders as the Bishop could not reform, and in all things to proceed according to the prescript Canon.

Thus witnesseth Boniface, Concil. Brit. p. 258. an Archbishop to an Archbishop of an Arch­bishop; not according to the practice of the times wherein it was written, but according to the ancient rule. An. 745. For long before Boniface his time Arch­bishops were swoln beyond the girt of the Canon; and before that England wa [...] honoured with that rank of men, Metropolitans were become Metro­no [...]ians, and above all rule, but that of their own will, and through com­mon custom had no regard to any other; so as if England will have them, it must be content to have them with their faults. But the truth is, the dignity, or title (which you will) was a plant of that virulent nature that would scarce keep under-ground in the time of the hottest persecution: For Steven, Mag. cent. 3 cap. 7. Bishop of Rome, liked the title of Universal Bishop. And after a little peace, it's a wonder how it grew to that height that it had; and no less wonderful that the Saxons gave entertainment to such Potentates. Much of whose spirits they might have observed in the entrance of their first Archbishop Austin, if God had not given them over to thraldom un­der the mystery of iniquity (of sinful man aspiring into the place of God, taught by that Courtly messenger of Rome) because they would not stoop to that mystery of godliness, God manifested in the flesh, as it was taught in simplicity by the rural Picts and Britons. But this was not all, for be­cause Archbishops were gotten above Canon, which was thought scanda­lous; therefore they gave as large a power by Canon as the former usurpa­tion amounted unto, and so stretched the Canon to the mind of the man, whenas they should have rather reduced the man to the Canon. The words of the Canon in our English tongue, run thus: It belongs to the Me­tropolian Bishop to rule Gods Churches; to govern, chuse, appoint, confirm, and remove Abbots, Abbotesses, Presbyters, and Deacons; and herewith the King hath nothing to do. And thus, though the apparent power of Archbishops was great and unlimited, Concil. Brit. p. 190. yet what more was wrapped up in that word Churches, only time must declare; for it is very likely that in those daies it was not understood: yet the practice doth not obscurely declare the mat­ter, for before this Law was established by Withered in a Council (where­in Bertnaldus Archbishop of Canterbury was president, An. 694. Ant. Brit. p. 55. and who was first Primate of England) Theodore Archbishop of Canterbury used such power over other Bishops in ordaining or removing them, as a Writer saith, that his rule was no other than perturbatio and impetus animi. But the Metro­politan [Page 16] in England as the times then were, Malmsb. lib. 1. cap. 2. had yet a further advantage, even over Kings themselves; Ant. Brit. p. 54. for there were divers Kingdoms in this Island, and Kings had no further power than their limits afforded them: But there was but one Metropolitan for a long time in all the Saxon Territories, so as his power was in spirituals over many Kingdoms, and so he became indeed Alterius orbis Papa. And it was a remarkable testimony of Gods special providence, that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman Chair, that they had not torn the European Church into as many Popedoms as Provin­ces. But no doubt God ordered it for a Scourge to the World, that Anti­christ should be but one, that he might be the more absolute Tyrant; and that Kings should bow down their necks under the double or rather mul­tiple yoke of Pope and Archbishops, for their Rebellion against the King of Kings.

CHAP. VIII. Of the Saxon Bishops.

HAd not Bishops been somewhat sutable, the Roman Clergy had not been like it self; and it had been contrary to Austin's principles to have advanced to Bishopricks men better qualified than himself. They first ruled the Saxon Church joyntly in the nature of a Presbytery, till about Sixty years after Austin's time, their pride would not endure together any longer, and it may be grew somewhat untractable under the Metro­politan, that resolved to be prouder than all; and thereupon Theodore Arch­bishop of Canterbury first divided his Province into Five Diocesses, and by appointment of the Kings and People placed Bishops over each, Ant. Brit. Concil. Brit 133. every one of them being of the right Roman stamp, Ant. Brit. 45. Ibid. 53. as himself was of the right Ro­man shaving. And it had been a wonder if Episcopacy (now for the space of Three hundred years degenerated, and that into such a monstrous shape as a Pope) should by transplanting become regenerate into their original conditi­on of meekness and humility. But it is a much greater wonder that they should become so purely ambitious as not to endure a thought of the ways of sobriety, but would be proud by Law; to let all the world know that they held it no infirmity, but an honour. For albeit that in the first time the Bi­shops work was to instruct & teach, to see the service of God to be diligently & purely administred in publick Congregations, Concil. Brit. 238, 246, 261. to Exhort, Reprove, & by teaching to amend such matters as he should find in life and Doctrine con­trary to Religion; and accordingly they carried themselves meekly and humbly, Mag. Cent. 7. cap. 7. studying peace & truth, and medled not with Secular Affairs: they are now grown up into State, Bed. hist. lib. 4. cap. 3. and must now ride on horse-back, that were wont to go on foot Preaching the Word; and must be respected above the rank of ordinary Presbytery; none must doubt of their truth, nor question their words, but they must be holden Sacred, as the word of a King, sine ju­ramento sit irrefragabile. Concil Brit. 196. Their presence must be a Sanctuary against all violence; An. 697. all Clerks and Religious houses must stoop under their power; their sentence must be definitive: Ibid. 329. An. 816. and thus advanced, they must keep state, viz. not go too far to meet Princes in their approach towards them, nor to light off their Horses backs to do Princes Reverence at their meeting; be­cause they are equal to Princes and Emperours: and if any Bishop shall be­have himself otherwise, Conc. 8. gen. Constant. can. 14. and after the old rustical fashion (for such are the [Page 17] words of the Canon) for disgrace done to their Dignity they must be sus­pended: So as by their own confession, Bishops henceforth are Bishops of a new fashion, that must incur a note of infamy for shewing any gesture of humility to Princes; which if any man will see more fully, let him peruse the Canon if he please. But this is not sublime enough; they must be not only equal, but in many respects superiour to Princes: for in matters that concern God, Omnibus dignitatibus praesunt; and more plainly, Princes must obey them Ex corde cum magna humilitate; Mag. cent. 8. cap 9. and this was allowed of by Offa the great in a legatine Synod. And thus highly advanced, Bishops are now consecrated to any work, and make every thing Sacred. Oaths taken before them are of highest moment; Concil. Brit. 128. and therefore the trial of Crimes be­fore them, and the acknowledgment of Deeds of conveyance in their pre­sence, are without control. An. 693. Their custody is a sufficient Seal to all weights and measures, Ll. Sax. cap. 37. which they committed to some Clerk whom they trusted: An. Aetheist. cap. 11. and at this day (though a Lay-person) beareth title of Clerk Concil. Brit▪ Concil. Brit. p. 197. of the Market. And although anciently they might not interesse secularibus; yet afterwards it became a part of their Office to assist Judges in secular causes, An. 697. to see that justice be not wronged; and they had the sole cognizance of all causes cri­minal belonging to the Clergy, their Tenants or Servants; and in their Synods their power reached to such Crimes of Lay-men as came within the savour of the Canon, though it were but in the cold scent, as the Laws of Athelstane and other his successors sufficiently set forth. And thus dressed up, let them stand aside, that room may be made for their Train.

CHAP IX. Of the Saxon Presbyters.

THese follow their Lords the Bishops as fast as they can hunt; for be­ing of the same Order (as the less proud times acknowledged) they would not be under foot, Concil. Brit. p. 576. and the others above the top. True it is, that the Bishops loaded them with Canons, and kept them under by hard work, under the trick of Canonical obedience; yet it was no part of their meaning to suffer them to become vile in the eyes of the Laity, Concil. Brit. p. 448. for they knew well enough that the Presbyters must be their bridles to lead and curb the people, Ll. Aethe [...]st. 13. Ibid. 406. and their eyes to see whether the winds from below blew fair or foul for them; whose consciences already told them that they meri­ted not much favour from the people. Concil. Brit. p. 273. They see it therefore necessary to inhaunce the price of a Presbyter somewhat within the alloye of a Bishop, Ll. Aethel. c. 2. Ll. Canut. c. 12. to the end that the Presbytery may not be too like the Babylonian I­mage, Mag. cent. 8▪ cap. 9. whose head was Gold, and feet of Iron and Clay. A Presbyter there­fore they will have to be of equal Repute with a Baron; and his person shall be in Repute so Sacred, as that all wrong done thereunto must be doubly punished, with satisfaction to the party, and to the Church. His Credit or Fame must not be touched by Lay-testimony: Nor is he to be judged by any Secular power; but to be honoured as an Angel. Such are these instruments of the Bishops Government; and these are put as a glass between the Bishops and people, and could represent the people to the Bi­shop black or white, and the Bishop to them in like manner, as they plea­sed; and so under fear of the Bishops curse, kept the people in awe to them­selves and it.

CHAP. X. Of other inferiour Church-Officers amongst the Saxons.

THey had other inferiour degrees of the Clergy, which because they are meerly subservient, and not considerable in Church-govern­ment, I shall only touch upon them. Deacons. The first are called Deacons, which were attending upon the Presbyters to bring the offerings to the Altar, to read the Gospel, to Baptize, and Administer the Lords Supper. Then follow the Sub-deacons, who used to attend the Deacons with consecrated Vessels, Sub-deacons. and other necessaries for the Administring of the Sacrements. Next these Acolites, which waited with the Trapers ready lighted while the Gos­pel was read, Acolites. and the Sacrament consecrated. Exorcists. Then Exorcists, that served to disposses such as are possessed by the Devil; and office (as it may seem) of little use, Concil. Brit. p. 54. yet very ancient; for they are found at the Synod at Arles, which was within Three Hundred years after Christ's death. Lecturers came next, Lecturers. who served to read and expound; and these were of use when Churches began to multiply, and Presbyters grew idle. Lastly, Ostiaries; which used to ring the bells, Ostiaries. and open and shut the Church-doors.

These are the several ranks of Church-officers, being Seven in number, (for Bishops and Presbyters make but one) and might be (as thus ordered) the Seven heads of the Beast whereon the woman sitteth; Concil. Brit. 261. and with much ado make up a kind of Church-service, somewhat like a great Hoe in a ship-yard at the stirring of a little log, An. 750. and are nevertheless well paid for their labour.

CHAP. XI. Of Church-mens maintenance amongst the Saxons.

I Take no notice in this account of the Abbots and Priors, and other such Religious men, as they were then called; nor can I pass them amongst the number of Church-governours or Officers, being no other than as a sixth finger, or an excrescence that the body might well spare, and yet they sucked up much of the blood and spirits thereof. But as touching the maintenance of those formerly mentioned, who had a constant influence in the Government of the affairs of the publick worship of God, and regard of salvation of the Souls of the people; I say their maintenance was diversly raised, and as diversly imployed. First, through the bounty of Kings and great men, Lands and Mannors were bestowed upon the Metropolitan and Bishops, in free Alms; and from these arose the maintenance that ascended up in abundance to the higher Region of the Clergy, but came again in thin dews scarce enough to keep the Husbandmans hope from despair; o­therwise had not the Prelates so soon mounted up into the chair of Pomp and State, as they did. I say, these are given in free Alms, or more plain­ly, as Alms free from all service; and this was doubtless soon thought upon, for it was formerly in president with their Heathenish-Priests and Druids, as Caesar noteth, that they had omnium rerum immunita­tem: yet with the exception of works of publick charity and safety, such [Page 19] as are maintaining of High-ways, repairing of Bridges, and fortifying of Castles, &c. and hereof the presidents are numerous. The work where­to this wages was appointed, was the worship of God, and increase of Re­ligion; and thus not only many of the Kings Subjects were exempted from publick service, but much of the Revenue of the Kingdom formerly imployed for the publick safety, became acquitted from the service of the Field, to the service of the Bead; the strength of the Kingdom much im­paired, and the Subjects much grieved; who in those early times saw the inconveniences, and complained thereof to their Kings, but could not pre­vail. This was the vintage of Kings and great men, M. Paris in vit. Eadrick. Abb. but the gleanings of the people were much more plentiful; for besides the Courts (which swell­ed as the irregularities of those times increased, and thereby enriched the Cofers of that covetous Generation, the greatest part whereof ought by the Canon to go to the publick) the best part of the setled maintenance, An. 1009. e­specially of the inferiour degrees, Concil. Brit. 513. arose from the good affections of the peo­ple, Ll. Aetheld. 31. who were either forward to offer, or easily perswaded to forgo con­stant supply for the Church-men out of their Estates, as well real as per­sonal, especially in the particulars ensuing. The most ancient of all the rest was the first-fruits, which was by way of eminency called Cyrick-sceate, or in more plain English, First-fruits Church free; which was always payable upon St. Martins day unto the Bishop out of that house where the party did inhabit upon the day or Feast of the Nativity. Concil. Brit. p. 185. It was first granted by Parlia­ment in the time of King Ina; and in case of neglect of payment, An. 693. or denial, it was penal eleven-fold to the Bishop, Concil. Brit. p. 545. besides a fine to the King, as was af­terwards ordered by Canutus.

After the first-fruits cometh to consideration the Revenue of Tythes, the which I find no publick Act of State to warrant, Tythes. till the Legatine Coun­cil under Offa: Although the Canon was more ancient. Concil. Brit. p. 298. The Bishop at the first was the general Receiver as well of these as of the former, An. 787. and by him they were divided into Three parts, Concil. Brit. 259. and imployed one to the poor; another for the maintenance of the Church; and a Third part for the maintenance of the Presbyter. But in future times many Acts of State suc­ceeded concerning this, amongst which that grant of Athelwolfe must be a little paused upon. Ingulfus. Gest. pontif. Lib. 2. cap. 2. Some Writers say that he gave the tenth Mansion, and the tenth of all his goods: but Malmsbury saith, the tenth of the hides of Land; but in the Donation it self, as it is by him recited, it is the Tenth Mansion. But Matth. Westm. understands that he gave the Tenth part of his Kingdom, An. 854. but in the Donation by him published it is decimam par­tem terrae meae. In my opinion, all this being by Tradition, little can be grounded thereupon. The form of the Donation it self is uncertain and various, the inference or relation more uncertain and unadvised; for if the King had granted that which was not his own, it could neither be accoun­ted pious or rational. Nor do we find in the Donation that the King in precise words gave the Land, or the Tenth part of the Land of his King­dom, but the Tenth of his Land in the Kingdom: And the exemplifica­tion published by Matth. Westm. countenanceth the same, albeit the Histo­rian observed it not. But suppose that the Kingdom joyned with the King in the concession, and that it was the course to pass it onely in the Kings name, yet could not the Tenth Hide, Tenth Mansion, or Tenth part of the Kingdom be granted, without confusion in the possessions of the peo­ple. For either some particular persons must part with all their possessi­ons, or else out of every mans possession must have issued a proportionable supply; or lastly a Tenth part of every mans possession, or House and Land, [Page 20] must be set forth from the rest; or some must lose all and become beggars, to save others: all which are to me equally improbable. Nevertheless I do not take the thing to be wholly fabulous, but may rather suppose that either a Tenth was given out of the Kings own Demesnes, which is most probable; or else the Tenth of the profits of the Lands throughout the Kingdom; and that it was by publick Act of State, and that clause forgot­ten by Historians. And thus might a good president be led to Alfred, Athelstan, Concil. Brit. p. 392. and other Kings, An. 905. Ibid. 527. who setled Tythes under payment of penalties, and appointed the times of payment, viz. An. 1009. Luminaries. The small Ttihes at Whitsontide, and the great Tithes at Alhollantide.

Another Tribute was that of Luminaries, which by Alfred and Gun­thrum was first setled by Law, Concil. Brit. p. 377. although it had been before claimed by Canon. It was payable thrice a year, viz. Hollantide, Candlemas, and Easter, Ibid. 545. An. 1032. at each time half a penny upon every Hide of Land; and this was under a penalty also.

Another Income arose from the Plough, and under the name of Plough-Alms: At the first it was granted by Edward the Elder generally, Plough-alms. An. 905. and the value was a penny upon every plough; and in after-times it was ordained to be paid Fifteen days after Easter. An. 1009.

Next comes a Fee at the death of the party, which was commonly call­ed Soul shot, Soul-shot. and paid (before the dead body was buried) unto that Church where the dead parties dwelling was. Concil. Brit. p. 571. An. 1009. So as they never left paying and asking so long as the body was above ground; and this it's probable tur­ned into that fee which was afterward called a Mortuary.

The incumbent also of every Church had Glebe laid to the Church; be­sides oblations, and other casual profits, Glebe. as well arising from houses border­ing upon the Church, Concil. Brit. 260. An. 750. as otherwise. All these four last were payable to the Priest of that particular Congregation, and had not their beginning till Parishes came to be setled.

Lastly, the zeal of the charity of England was not so cold as to contain it self within it's own bounds: Peter-pence. They were a dependent Church upon Rome, and their old Mother must not be forgotten. An alms is granted; for under that lowly title it passed first, but afterwards called Romscot or Romes­feogh, or Heord-penny; for it was a penny upon every hearth or chimney, payable at the Feast of St. Peter ad vincula; and therefore also called Peter-pence: it was for the Popes use; and was setled under great penalties up­on the defaulters. It arose by degrees and parcels: For first Ina the Sax­on King granted a penny out of every house in his Kingdom: Concil. Brit. p. 230. An. 725. After him Offa granted it out of every dwelling house that had ground thereto occu­pied to the yearly value of Thirty pence, Concil. Brit. p. 311. An. 791. excepting the Lands which he had purposed for the Monastery at St. Albans. Ibid. 313. An. 847 This Offa had a much lar­ger Dominion than Ina, and was King over Three and twenty Shires. Af­ter whom Aethelwolf passed a new grant thereof out of his whole Kingdom, which was well-nigh all that part which was called Saxony, with this provi­so nevertheless, that where a man had divers dwelling houses, he was to pay onely for that house wherein he dwelt at the time of payment. After­ward Edward the Confessor Ibid. 6. 1. confirmed that Donation out of such Tene­ments as had Thirty pence vivae pecuniae. If then it be granted, that the Saxon Subjects had any property in their Lands or Tenements, as no man ever questioned, then could not this charge be imposed without the pub­lick consent of the people▪ and then the assertions of Polydore and the Monks, who tell us that Ina and Offa had made the whole Kingdom tribu­tary to Rome, must needs be a mistake, both in the person, and the nature [Page 21] of the gift, seeing there is a much more difference between an Alms and a Tribute, than between the King and the People. Now that it was an Alms, and not a Tribute, may apear, for that the original was a suddain pang of Zeal, conceived and born in one breath, Vit. Offae. 19. while the King was at Rome; and therefore not imposed as a Tribute. Secondly, it was ex rega­li munificentia, and therefore free. Thirdly, it was expresly the gift of the King; for the Law of St. Edward, which provideth for the recovery of the Arrears of this Money, Concil. Brit. p. 445. 545. and enjoyneth that they must be paid to the King, and not to Rome, Concil. Brit. p. 621. as it was in the days of Canutus and Edgar, ren­dereth the reason thereof to be, because it was the Kings Alms.

Secondly, that it was an Alms onely from the King, and out of his own Demesnes, may seem not improbable, because it was ex regali munificentia, which could never be affirmed if the gift had been out of the Estates of others. Secondly, it was granted onely out of such houses as yielded Thirty pence Rent, called vivae pecuniae, because in those times Rent was paid in Victual; so as it may seem that onely Farms were charged here­with: and not all mens Farms neither; for the general income will ne­ver answer that proportion. The particular hereof I shall in brief set forth. It appeareth in the former Quotation, that Offa charged this Lea­vy upon the Inhabitants dwelling in Nine several Diocesses, viz. Hereford, which contained the City and County adjacent. 2. Worcester, containing the Cities and Shires of it and Gloucester. 3. Litchfield, containing War­wickshire, Cheshire, Staffordshire, Shropshire, and Derbyshire. 4. Leicester, with the County adjacent. 5. Lincoln, with the County adjacent. 6. Dor­chester, whereto belonged Northamptonshire, Buckinghamshire, Bedford­shire, Huntingtonshire, Cambridgeshire, and half Hertfordshire. 7. Lon­don, with Essex, Middlesex, and the other half of Hertfordshire. 8. Helm­ham, with Norfolk. 9. Domuck or Dunwich, with Suffolk. In which nine Diocesses were two and Twenty Shires. And he further granted it out of Spatinghenshire, (now Nottingham) whose Church belonged to York. But in Ethelwolfs time the Grant was enlarged, and extended into Fifteen Diocesses; which, together with their several charge out of the English Martyrology, I shall particularize, Fox Mary [...]. p. 340. as followeth:

The whole Sum whereof not exceeding Two hundred pounds Six shil­lings [Page 22] and Eight pence, will not amount to Seven hundred pounds of now-currant Money, if the weight of a Penny was not less in those times than in the Reign of Edward the First, when it was the Twentieth part of an Ounce, and that the Twelfth part of a Pound, as by the Statute thereof made may appear. Nor can the difference be much (if any) in regard of the vicinity of the time of this extract to that of the Statute: for though no particular date thereof appear, yet it seemeth to be done af­ter the Translation of the See from Thetford to Norwich, which was done in William Rufus his time; and after the erecting of the Bi­shoprick of Ely, Brit. Ant. p. 18. which was in the time of Henry the First. Now albeit this charge was in future times diversly ordered and changed; yet upon this account it will appear, that not above Eight and forty thousand and Eighty Houses were charged in this time of Edward the Second with this Assessment; which is a very small proportion to the number of Houses of Husbandry in these days, and much more inferiour to the proportion of Houses in those times, if Polydores observation be true, that in the Conquerour's time there were Sixty thousand Knights Fees; and as others, Fifty thousand Parishes. It may therefore be rather thought that none but the Kings Farmers were charged herewith, notwithstanding the posi­tive Relations of Writers, who in this case, as in most others, wherein the credit of Rome is engaged, spare not to believe lightly, and to write largely. And thus for their Sevenfold Church-Officers, we have also as many kinds of constant maintenance. One in Lands and Tenements, and Six several kinds out of the Profits and the personal Estate, besides the emergent benefits of Oblations and others formerly mentioned.

CHAP. XII. Of the several Precincts of Jurisdictions of Church-Gover­nours amongst the Saxons.

THe Church-Officers thus called to the Drum and paid, are sent to their several charges over Provinces, Diocesses, Deaneries, and Pa­rishes, as they could be setled by time and occasion. Before the Saxons arrival, Malms. gest. Reg. lib. 1. c. 4. London had the Metropolitan Sea, or was the chiefest in prece­dency; for Arch-bishops the Britons had none. Afterwards, by advice of the Wise-men, Canterbury obtained the precedency, for the honour of Austin, who was there buried. The number of Provinces, and their se­veral Metropolitan Sees, Bed. hist. lib. 1. cap. 29. was first ordered by advice of Pope Gregory, who appointed two Arch-Bishops in Saxony; the one to reside at Canter­bury, the other at York; and that each of them should have Twelve Bi­shops under them. But this could never be compleated till Austin was dead; as by the Epistle of Kenulphus to Pope Leo appeareth. Nor then had the Pope the whole power herein intailed to his Tripple Crown; Malmsb. loco citat. Vit. Offae. for the same Epistle witnesseth, that the Council of the wise-men of the King­dom, ruled the case of the Primacy of Canterbury. Malmsb. Concil. Brit. 133. And Offa the King af­terward divided the Province of Canterbury into two Provinces, which for­merly was but one. Antiq. Brit. The Precincts of Diocesses have been altered ordina­rily by Kings, Antiq. Brit. p. 54. or the Arch-bishops and their Synods, as the lives of those first Arch-bishops set forth. M. Westm. An. 775. Theodore had divided his Province into Five Diocesses, and within a hundred years after Offa we find it increased into eleven Diocesses.

[Page 23] Diocesses have also been subdivided into inferiour Precincts, called Dea­naries or Decanaries, the chief of which was wont to be a Presbyter of the highest note, called Decanus, or Arch-Presbyter. The name was taken from that Precinct of the Lay-power, called Decennaries, having Ten Presbyters under his visit, even as the Decenners under their chief. Ll. Edw. conf. cap. 31. The smallest Pre­cinct was that of the Parish, Lindwood. l. 1. de constit. c. 1. the oversight whereof was the Presbyters work. They had Abbeys and other religious Houses; but these were however Regular among themselves, yet Irregular in regard of Church-government, whereof I treat.

CHAP. XIII. Of the manner of the Prelates Government of the Saxon-Church.

HAving discoursed of the Persons and Precincts, it now befals to touch upon the manner of the Government of the Church by the Saxon-Prelates; which was not wrapped up in the narrow closet of pri­vate opinion, but stated and regulated by publick Council, as well in the making as executing of Laws already made. Malmesh. gest. pontif. lib. 3. fo. 263. This course was learned from antiquity, and inforced upon them by a Roman-constitution, in the case that concerned Arch-bishop Theodore and Wilfrid, upon this ground, Quod enim multorum concilio geritur nulli consentientium ingerat scandalum. These are most ordinarily called Synods, although at the pleasure of the Relator called also Councils, and are either Diocesan, or Provincial, Baronius An. 930. or National, and these either particular or general. The general consisted of all the Bishops and Clergy; and such was the Synod under Arch-Bishop Dunstan called. The National Synods were diversly called; sometimes by the Pope, sometimes by the King, as the first moving occasion concerned either of them. For Pope Agatho in a Synod at Rome, Malmesb. gest. pontif. lib. 3. p. 263. ordered that a Synod should be called in Saxony (viz. England) Sacrosancta authoritate & nostra Synodali unitate; An. 680. and many Legatine Sy­nods in succeeding times demonstrate the same. That the Saxon Kings also called them upon occasion, is obvious through all the Councils, and needless to instance amongst, so many particulars. Concil. Brit. p. 191. 310. & 318. The Provincial Synods were sometimes convocated by the King, and sometimes by the Arch-bi­shop, and sometimes joyntly. The Diocesan were called by the Bishop. In the National and Provincial, sometimes Kings moderated alone, some­times the Arch-bishop alone, and sometimes they joyned together. The Assistants were others, Ibid. 316. 318, 387. both of the Clergy and Laity, of several Ranks or Degrees; and it seemeth that Women were not wholly exclu­ded; for in a Synod under Withered King of Kent, Abbatisses were pre­sent and attested the acts of that Synod, together with others of the Clergy of greater degree. The matters in action were either the ma­king or executing of Laws for Government; and (because few Laws passed that did not some way reflect upon the King and people, as well as the Clergy) the King was for the most part present, and always the Lords, and others: Yet if the matters concerned the Church in the first act, the King though present, Concil. Brit. 245. 317, 387. the Arch-bishop was nevertheless President; as it besel at a Synod at Clevershoe, An. 747. and another at Celchith, An. 816. And in the Reign of Edward the Elder, though the Synod was called by the King, yet the Arch-bishop was President. Concerning all [Page 24] which it may be in the sum well conceived, that in the penning of the Councils aforesaid, either the Clergy (being Pen-men) were partial or negligent in the setting down of the right form; and that the Kings cal­led these Assemblies by instance of the Archbishop, and sometime presi­ded in his own person, and sometimes deputed the Archbishop thereunto.

The executing of Laws was for the most part left to the Diocesan Synods; yet when the cases concerned great men, the more general Coun­cils had the cognizance, and therein proceeded strictly, sparing no per­sons of what degree soever. M. Westm. An. 955. 958. Examples we find hereof, amongst others, of one incestuous Lord, and two delinquent Kings, Edwy and Edgar. Nay they spared not the whole Kingdom; Concil. Brit. 479. for in the quarrel between Cenulphus the King, and Archbishop Wilfrid, the whole Kingdom was un­der interdict for six years space; and no Baptism administred all that time. Ibid. 337. Nor were they very nice in medling with matters beyond their sphere, even with matters of Property; for at a Provincial Council (for so it is called) they bore all down before them, even the King himself, as in the case between Cenulphus the King, Ibid. 319. 332. and the Archbishop of Can­terbury, concerning the Monastery of Cotham. Concil. Brit. p. 334. The like also of ano­ther Synod concerning the Monastery of Westburgh: It's true, the Lords were present; and it may be said, that what was done, was done in their right; yet the Clergy had the rule, and begat the Child; and the Lay-Lords onely might challenge right to the name. This concurrence of the Laity with the Clergy contracted much business, and by that means a customary power, which once rooted, the Clergy after they saw their time (though not without difficulty) turned both King and Lords out, and shut the doors after them, and so possessed themselves of the whole by Survivorship. But of this hereafter.

The particular Diocesan Synods were, as I said, called by the Bishops within their several Diocesses. The work therein was to preach the Word as a preparative; Mag. cent. 8. cap. 9. then to visit and enquire of the manners of the Cler­gy in the worship of God, and of all matters of scandal, and them to correct. These Synods were to be holden twice every year, at certain times; and if they met with any matter too hard for them to reform, they referred it to the Provincial or National Synod.

CHAP. XIV. Of Causes Ecclesiastical.

AS the power of Synods grew by degrees, so did also their work; both which did mutually breed and feed each other. Heresie. An. 446. Their work consisted in the reforming and setling matters of Doctrine and Practice. The first was the most ancient, and which first occasioned the use of Synods. In this Island the Pelagian Heresie brought in the first precedent of Synods that we have extant; and herein it will admit of no denial, but in the infancy of the Church the Teachers are the principal Judges of the nature of Errour and Heresie, as also of the truth; as the Church is the best guide to every Christian in his first instruction in the principles; but after some growth there is that in every Church and Christian that makes itself party in judging of truth and errour joyntly with the first Teachers. And therefore 'tis not without reason, that in that [Page 25] first Synod, although Germanus was called Judex, Beda. hist. l. 1. yet the people hath the name of Arbiter, and 'tis said that they did contestare judicium.

Blasphemy was questionless under Church-censure, Blasphemy. but I find no foot­steps of any particular Law against it; Concil. Brit. p. 341. An. 840. yet in Scotland a Law was made to punish it with cutting out the Tongue of the Delinquent: But it may be feared that neither the Saxons nor their Roman Teachers, were so zealous for the honour of Gods Name, as to regard that odious sin; un­less we should account them so holy as that they were not tainted there­with, and so needed no Law.

But Apostacy was an early sin, and soon provided against; Apostacy. the Church-censure was allowed of in Britain before the Saxons Church had any breath: Afterward it was punished by Fine and Imprisonment, An. 314. Concil. Brit. 41. by a Law made by Alfred, Ibid. 367. as he provided in like manner for other Church Laws.

The times anciently were not so zealous for due observance of Divine Worship, False Wor­ship. unless by the Church-men who were the Leaders therein; a foreign Canon was made to enforce that Duty long before, Canon. Apost. cap. 10. but it would not down with the rude Saxons: they, or the greater sort of them, were content to come to Church onely to pray and hear the Word, and so went away. This is noted by that ancient Writer in nature of an im­putation, as if somewhat else was to be done, Bed. hist. lib. 3. cap. 26. which they neglected; this somewhat was the Mass, which in those days was wont to be acted after the Sermon ended. Mag. Cent. 7. cap. 6. And it's probable that if the Nobles were so ill trai­ned up, the inferiour sort was worse; and yet find we no Law to con­strain their diligence: or to speak more plainly, it's very likely the Sa­xons were so resolute in their Worship, Concil. Brit. p. 306. as there was either little need of Law to retain them, or little use of Law to reclaim them. For it's ob­served in their late Psalter, that the Roman Clergy was not more forward to Image or Saint-worship, than the people were backward thereto; and therein shewed themselves the true Seed of their Ancestors in Germany, Tacit. Mor. Germ. of whom it's observed that they endured not Images, but worshipped a Deity which they saw sola reverentia.

Sorcery and Witchcraft they had in abomination: yet it was a sin al­ways in a mist, and hard to be discerned but by the quick-sighted Clergy; and therefore it was left to their censure, as a sin against the Worship of God. Concil. Brit. 246. An. 745. This Ethebald the Mercian King first endowed them with; and they alone exercised the Cognizance thereof till Alfred's time, Ibid. 377. who infli­cted thereupon the penalty of Banishment: Ibid. 405. An. 928. but if any were killed by in­chantment, the delinquent suffered death by a Law made by Aethelstan. And thus by degrees became one and the same Crime punishable in seve­ral Jurisdictions, in several respects.

Concerning Perjury, Perjury. the Prelates had much to do therewith in future times; and they had the first hint from Ina the Saxon King's Grant to them of power to take Testimonies upon Oath, Ll. Sax. fol. 4. as supposing that the Re­verence that men might bear to their Persons and Functions, would the rather over-awe their Tongues in witnessing; that they would not dare to falsifie, lest these knowing men should espy it, and forthwith give them their doom. An. 9, 28. But no positive Law allowed them that power of sentence, till Aethelstan's Law gave it; and upon conviction by the same Law, di­stested the delinquents Oath for ever.

Sacriledge comes in the next place, Sacriledge. being a particular Crime meerly of the Clergy-mens invention and naming; for before they baptized it, you might have well enough called it Theft, Oppression, or Extortion. This Crime the Prelates held under their Cognizance by vertue of that general [Page 26] Maxime, Concil. Brit. p. 127. That all wrong done to the Church, must be judged by the Church. The first time that I can observe they challenged this power, An. 610. Ibid. 265. was by Eg­bert Archbishop of York in the Seventh Century.

But nothing was more their own than Simony; Simony. and that may be the reason why we find so little thereof either for the discovery or correcting of it. Concil. Brit. 163. All former Crimes were in their first act destructive to the Church, but this advantageous; and therefore though the Canons roar loud, yet the execution is not mortal, because it's bent against the dignity, and not the gain. And although the Canon would not that any Presbyter should be made, but presented therewith to some place to exercise his Function in, yet it serveth not for those times when men were sent forth rather to make Flocks than to feed Flocks.

And yet the Theam of Marriage was the best Dish in all their Enter­tainment: They had the whole common place thereof, Matrimonial Causes. with the Appur­tenances, within the compass of their Text, before ever it attained the ho­nour of a Sacrament. It was a branch of Moses Law, whereof they were the sole Expositors, and so seemeth to be cast upon them by a kind of necessity, as an Orphan that had no owner. Nevertheless a passage in Eusebius seemeth to report this Trust in the Civil Magistrate: for he relateth out of Justin Martyr, concerning a Divorce sued out by a godly Matron long before the Prelacie got into the Saddle, or the Clergie had the power of Judicature. And whereas Lucius taxed Vrbicius the Ma­gistrate for punishing Ptolomy who was guilty of no Crime worthy of his cognizance in that kind, amongst other Crimes (enumerated by him, whereof Ptolomy was not guilty) he nameth the Crimes against the Se­venth Commandment; intimating thereby a power in the Judge to have cognizance of those Crimes as well as others. But the Prelacie beginning to mount, nibled at it in the second Centurie, but more cleerly in the fourth, when the persecutions were allayed, and men of Learning began to feel their Honour; and never left pursuit till they had swallowed the Bait, and exercised not onely a Judiciary power in determining all Doubts and Controversies concerning the same, but challenged an Efficienciary power in the Marriage-making. This Garland Austin brought over with him, and crowned the Saxon Clergie therewith, as may appear by his Queries to Pope Gregory: Beda hist. l. 1. cap. 27. And thus the Saxons that formerly wedded themselves, became hereafter wedded by the Clergie. Yet the Civil Magistrate retained a supream Legislative power concerning it, as the joynt Marriages between the Saxons, Britons, and Picts, do manifest: For it's said of that Work, that it was effected per commune concilium & assensum omnium Episcoporum, procerum, comitum, & omnium sapientum, senio­rum, & populorum totius regni, & per praeceptum Regis Inae; Concil. Brit. 219. and in the time of Edward their King, Concil. Brit. p. 427. An. 944. were enacted Laws or Rules concerning Marriage; and so unto the Lay-power was the Ecclesiastical adjoyned in this Work.

The Clergie having gained the Principal, with more ease obtained the Appurthenances; Bastardy. such as Bastardy, Adultery, Fornication, and Incest There was some doubt concerning Bastardy, because it trenched far in­to the Title of Inheritance; and so they attained that sub modo, as after­ward will appear. The Laws of Alfred and Edward the elder, allowed them the cognizance of Incest; Incest. although nevertheless the Civil Magi­strate retained also the cognizance thereof, Concil. Brit. p. 392. An. 905. so far as concerned the penal­ty of the Temporal Law. Adultery and Fornication, they held without controul; Adultery. Fornication. yet in the same manner as the former: for the Civil Magi­strate had cognizance thereof, so far as touched the Temporal penalty. [Page 27] And to give them as much as can be allowed, Concil. Brit. p. 558. it's probable that in all or most of the Cases foregoing, they had the honour to advise in determining of the Crime, and declaring the Law, or defining the matter; for in those ignorant times it could not be expected from any other.

But how the cognizance of Tythes crept under their wing, Tythes. might be much more wondred at, for that it was originally from the Grant of the People: nor can a better ground be found by me than this, that it was a matter of late original: For till the Seventh Century the times were troublesome; and no setled maintenance could be expected for the Mi­nistry, where men were not in some certainty of their daily Bread. And as it will hardly be demonstrated that this Title was ever in any positive National Law before the time of Charlemain, in whose time, by a Synod of Clergie and Laitie, it was decreed that Tythes should be gathered by selected persons, to pay the Bishops and Presbyters: Synod Durien. cap. 7. An. 785. So neither can I find any Saxon National Constitution to settle this duty, till Alfred's time, although the Church-men had them as a voluntary Gift (so far as tou­ched the quota pars) Rabban. Epist. ad Hadubrand for the space of well-nigh a hundred years before. But Alfred made a National Law, under a penalty, to enforce this Duty; which the Canon could not wring from the Saxons, Concil. Brit. p. 277. how dreadful soever the Censure proved. And by this means the Church had their remedy by Ecclesiastical censure for the matter in fact, and also the Civil Magi­strate the cognizance in point of Right, albeit future times introduced a change herein.

CHAP. XV. A brief Censure of the Saxon Prelatical Church-Government.

THis that I have said, might at the first view seem to represent a curious Structure of Church-policie, which might have put a pe­riod to time it self; but (to speak sine ira & studio) the height was too great, considering the foundation, and therefore ever weak, and in need of props. The foundation was neither on the Rock, nor on good ground, but by a Ginn screwed to the Roman Consistory, or like a Castle in the Air, hanging upon a pin of Favour of Kings and great men. At the first they thought best to temporize, and to hold both these their strings to their Bow; but feeling themselves somewhat under-propped by the Con­sciences of the ignorant people, they soon grew wondrous brave, even to the jealousie of Princes; which also was known so notoriously, that the publick Synods rang, That the Prelates loved not Princes, but emulated them, and envied their greatness, and pursued them with detraction. Concil. Brit. p. 254. An. 747. And if the Cloth may be judged by the List, that one example of Wilfrid Archbi­shop of York will speak much. He was once so humble minded, Malmesb. gest. pontif. lib. 3. An. 680. as he would always go on foot to preach the Word; but by that time he was warm in his Archbishops Robes, he was served in Vessels of Gold and Sil­ver, and with Troops of Followers, in such Gallantry, as his Pomp was en­vied of the Queen. A strange growth of Prelacy in so small a space as Eighty years, and in the midst of stormy times, such as then afflicted this poor Country! But this is not all; for never doth Pride lead the way, but some other base Vice follows. I will not mention the lives of the [Page 28] Monks, Nuns, and other Clerks; Bonis. epist. ad Cutbertum. An. 745. Malmsbury speaks sufficiently of their Luxury, Drunkenness, Quarrelling, and Fighting. Others witness there­to, and tell us that the Clergie seldom read the Scripture, and did never preach, and were so grosly ignorant, that Alfred the King being a diligent Translator of Latine Writers into the Saxon Tongue, rendreth this reason, Because they would be very useful to some of his Bishops that understood not the Latine Tongue. Concil. Brit. p 379. Nor were the Presbyters of another dye; for that King bewailing their ignorance, in his Letter to Wolfegus, saith, That those which were de gradu spirituali, were come to that condition, that few of them on this side Humber could understand their Common prayers, or translate them into Saxon; and so few, as I do not (saith he) remember one on this side the Thames when I began to reign. And the Synod that should have salved all, covers the Sore with this Canonical Plaister, that those of the Clergie that could not say Domine miserere in Latine, Concil. Brit. p. 248, & 253. An. 747. should instead thereof say, Lord have mercy upon us in English. It was therefore a vain thing for the Clergie to rest upon their Works, or Title of Divine Right; their great Pomp, sacred Places, and savour of Kings, commended them to the Administration, or rather Adoration of ignorant people; and the favour of the Roman Chair, unto the regard of Kings: who main­tained their interest with the Conclave on the one side, and with the People on the other side, by their means; and so they mutually served one another. It cannot be denied but the Pope and Kings were good Cards in those days; yet had the Prelacie maturely considered the na­ture of the Saxon Government, so much depending upon the people, they might have laid a more sure foundation, and attained their ends with much more ease and honour. I commend not the base way of Po­pularity by principles of Flattery, but that honourable service of Truth and Vertue which sets up a Throne in the minds of the Vulgar, few of whom but have some sparks of Nature left unquenched: for though Respect may chance to meet with Greatness, yet Reverence is the proper Debt to Goodness; without which we look at great men as Comets, whose influence works mischief, and whose light serves rather to be gazed upon, than for direction.

The foundation thus happily laid, the progress of the building was no less irregular in regard of their ends that they aimed at: For first, they admitted the Laity into their Synods; who were not so dull but could espie their ambition, nor so base spirited as to live in slavery af­ter conviction. This Errour was espied I confess, but it was too late; and though they reformed it, yet it was after Four hundred years labour. And in the mean time, by the contentions of the Clergie amongst them­selves, Kings had first learned so much of their Supremacy, and the Laity so much of their Liberty, as they began to plead with the Clergie, and had brought the matter to issue, before the Synod could rid them­selves of these Lay-Spectators, or rather Overseers of their ways and a­ctions. A second Errour was the yoking of the Bishops power under that of the Synods: for they had little or no power by the Canon that was not under their controul, Cantab. 10. 200, 263. neither in admission or deprivation of Presby­ters or others, determining of any Cause, nor passing sentence of Excom­munication: And this could not but much hinder the hasty growth of Antichrist's power in this Kingdom. Nor could it ever be compleated so long as the Synods had the chief power. Nevertheless the inthral­led spirits of the Clergie, and terrour of the Papal thunder-bolt, in conti­nuance of time surmounted this difficulty, and Synods became so tame [Page 29] and easily led, as if there had been but one Devil to rule amongst them all. For if any quick eye or active spirit did but begin to peep or stir, the Legate e latere soon reduced him into rank, and kept all in awe with a Sub poena, of unknown danger. A third error, was the allowing of pe­culiars and exemptions of Religious Houses from ordinary jurisdiction; and this was an error in the first concoction, a block in the way of Prela­cy, and a clog to keep it down. This error was soon felt, and was occa­sion of much mutiny in the body Ecclesiastical; but exceeding profitable for Rome, not only in point of Revenue by the multitude of Appeals, but especially in maintaining a party for the Roman See, in case the Prelacy of England should stumble at the Supremacy of Rome. Otherwise it seemed like a Wen upon the body, rather than any Homogene Member; and without which certainly the English Prelacy had thriven much bet­ter, and the Roman Chair much worse. In all which regards, I must con­clude, that the Prelatical Government in England was as yet like a young Bear not fully licked, but left to be made compleat by time and ob­servation.

CHAP. XVI. Of the Saxons Common-wealth, and the Government thereof; and first of the King.

HAving already treated of the Saxon Church, in order I am now come to the Republick, which in all probability will be expected to be sui­table to their original in Germany; whereunto having relation, I shall first fall upon the persons and degrees abstractively, then in their Assemblies, and lastly of their Laws and customs. The Saxons in their first state in Germany were distributed into four Classes, viz. the Nobles, the Free-men, the Manumitted persons, and the Bond-men. Under the Nobility, and from them, arose one that was called a King, of whom I shall speak apart: the two last differed only in the bare liberty of their persons, and therefore may be comprehended under one head, as they were in their original.

A King amongst the Saxons in probability was anciently a Comman­der in the field, an Officer pro tempore, and no necessary Member in the constitution of their State: for in time of peace, when the Common­wealth was it self, the executive power of the Law rested much in the Nobility; but in times of War, and in publick distractions, they chose a General, and all sware Obedience unto him during the War; it being fi­nished, the General laid down his Command, Witik in gest. Saxon. lib. 1. and every one lived aequo jure propria contentus potestate. But in their transmigration into Britain, the continuance of the War causing the continual use of the General, made that Place or Office to settle and swell into the condition of a King; and so he that was formerly Dux became Rex; there being no more difference in the nature of their places, than in the sense of the words; the one sig­nifying to Lead, the other to Govern; so as he that formerly was a servant for the occasion, afterwards became a servant for life; yet cloathed with Ma­jestly, like some bitter Pill covered with Gold, to make the service better tasted. Nor was the place more desirable, if duly considered. For first, his Title rested upon the good opinion of the Free-men; and it seemeth to be one of the best Gems of the Crown, for that he was thereby declared [Page 30] to be most worthy of the love and service of the people. Yet was the ground of their Election so uncertain, as a man might imagine that some­times there appeared more of the will than of the judgment in it; that it might be said to be the more free, for they neither excluded women nor children further than present occasions led them. The West-Saxons deposed Seburg their Queen, because they would not fight under a woman; but the Mercians obeyed Elfled their Queen, M. Westm. An. 672. and under her fought vali­antly with good success against the Danes; M. Westm. An. 912, 919. imitating the custom of the Sitones or Norwegians in Germany; Tacit. Cragius. or they might borrow it from the Lacedemonians. A Custom it was so much the more honourable, by how much it demonstrateth freedom, and that the worth of the people rested not so much in the head, as it's diffused through the whole body. And it seemeth to run in the Blood of an English-man, even to this day, to be as brave under a single Queen, as under the most valiant King, if not much more; and still to strive to be as fa­mous for the defence of Majesty wherever they set it, as the Britons were of old. Nor were they different in their respect of age, from that of the Sex; for though after the death of Edmond, Edwin or Edgar were to have succeeded in the Crown by the right of descent, yet the States would not admit them, because they were Minors; but the Mer­cians admitted Kenelme a child of Seven years old to be their King. They likewise excluded not Bastards till the Clergy interposed; for they having wound themselves into the Councils of the Kingdom, procured a Consti­tution to back them in the Election of Kings Legitimate, &c. Let the Kings be legally chosen by Priests and Elders, and not such as are begotten by Adultery or Incest: which Constitution was made in a Legatine Council, and confirmed by great Offa. Mag. cent. 8. cap. 2. The rule of their Election was the same with that in Germany, viz. An. 747. Tacitus. to elect the chiefest out of the chiefest Family, that is, the chiefest for worth, not by descent; yet the honour they bare to their brave Kings who had deserved well, made some to honour their posterity, and to chuse their eldest after their decease; and so in time Crowns were taken up by custom, and Election oftentimes subsequent was accounted but a ceremony, unless the people will dispute the point.

Secondly, this Election was qualified under a stipulation or covenant, wherein both Prince and people were mutually bound each to other; the people to defend their King, Tacitus which the Historian saith was praecipuum Sa­cramentum; and the Prince to the people to be no other than the influ­ence of the Law, Concil. Brit. p. 397. sutable to that saying of Aethelstan the Saxon King, See­ing I according to your Law allow you what is yours, do you so with me; as if the Law were the sole umpire between King and people, and unto which not only the people, but also the King must submit. The like whereun­to, Ina the great Saxon King also, Ll. Inae. Lamb. No great man, saith he, nor any other in the whole Kingdom may abolish the written Laws. Kings furthermore bound themselves (at their entrance into the Throne) hereunto by an Oath; as it's noted of Canutus, unto whom, after Miror cap. 1. Sect. 1. Aetheldred was dead, the Bishops, Ab­bots, Dukes, and other Nobles, came and Elected him to be their King, and sware Fealty unto him; and he again sware to them, that Secun­dum Deum, Wigorn. An. 1016. & secundum seculum, &c. viz. according to the Laws of God, and of the Nation, he would be a faithful Lord to them. It's probable, I grant, that the praecipuum Sacramentum formerly mentioned, was in the first na­ture more personal for the defence of the person of their Leader, whilst he was their Captain: because it much concerned the good of the Army, [Page 31] and without whom all must scatter, and be brought to ruine; and this the words of the Historian do evidence. But the safety of the whole people depended not on him after the War was done, and therefore the Oath tied them not any further: nor did the safety of the people after­wards, when as the Saxons entred this Land, so absolutely rest upon the person of the King, especially if he proved unfit to manage the work: and therefore the fealty that the people sware to their King, was not so absolutely determined upon their persons, otherwise than in order to the publick weal, as may appear from the Laws of the Confessor, who was within Thirty years after the Reign of Aethelstan formerly mentioned. The words in English run thus: All the people in their Folkmote shall con­federate themselves as sworn Brethren, to defend the Kingdom against stran­gers and enemies, together with their Lord the King, and to preserve his Lands and Honours together with him with all faithfulness, and that within and without the Kingdom of Britain they will be faithful to him as to their Lord and King. So as 'tis evident, the Saxons fealty to their King, was subservient to the publick safety; and the publick safety is necessarily de­pendant upon the liberty of the Laws. Nor was it to be expected that the Saxons would endure a King above this pitch. For those parts of Germany (whence they came) that had the Regiment of Kings (which these had not) yet used they their Kings in no other manner than as Servants of State, Tacitus. in sending them as Embassadors and Captains, as if they claimed more interest in him than he in them: And the Historian saith expresly, that amongst those people in Germany that had Kings, their Kings had a defined power, and were not supra libertatem. And this Maxim of State became afterwards priviledged by Sanctuary: for by the growth of Antichrist, not only the Clergy, but even their Tenants and Retainers were exempt from the reach of Kings; and even by their own concession allowed of a Law that cut the throat of their indefined prerogative, viz. That if the King defend not his people, and especially Church-men from injury, nec nomen Regis in eo constabit, verum nomen Regis perdit. Ll. Sax. Ed. cap. 17. Which Law however it might pass for currant Divinity in those days, yet 'tis strange it should get into a publick Act of State. M. Westm. An. 756. 758. Nor was this a dead word; for the people had formerly a trick of deposing their Kings (when they saw him peep above the ordinary reach) and this was an easie work for them to do, Wigorn. An. 755. where ever Neighbouring Princes of their own Nation watched for the windfals of Crowns. This made the Monarchical Crown in this Land, to walk circuit into all parts of the Countrey to find heads fit to wear it, until the Norman times.

Thirdly, the Saxons had so hampered their Kings in their Elections, and made them so properly their own, as they claimed an interest not only in the person of their Kings, but also in their Estates, so as in some re­spects they were scarcely sui juris. For King Baldred had given the Man­nor of Malings in Sussex to Christ-church in Canterbury; and because the Lords consented not thereto, it was revoked, Concil. Brit. 340. and King Egbert afterwards made a new grant by advice of the Lords; which shews that the De­mesnes of the Crown were holden sacred, and not to be disposed of to any other use, though pious, without the consent of the Lords: and herewith concur all the Saxon infeodations, attested and confirmed by Bishops, Abbots, Dukes, and others of the Nobility, under their several hands.

Nevertheless, Kings were not then like unto plumed Eagles, exposed to the charity of the Fowls for food, but had a Royal maintenance suitable [Page 32] to their Majesty. Their power was double, one as a Captain, another as a King; the first was first, and made way for the second. As Captain, their power was to lead the Army, punish according to Demerits, and accor­ding to Laws, and reward according to Discretion. As Captain, they had by ancient custom the spoil left to their ordering by permission of the Army, Exigunt Principis liberalitate illum Bellatorem equum, illam cruentam & victricem frameam; Tacitus. and they were not wont in such cases to be close handed ( per bella raptus munificentiae materia) the spoils in these wasted parts of Germany bring little other than Horses and Arms. But after they came into Britain, the change of Soil made them more fat; Horses and Arms were turned into Towns, Houses, Lands, and Cattle; and these were distributed as spoils amongst the Saxon Souldiers by their Generals; and this redounded to the maintenance of the State and port of the great men, who were wont to be honoured non stipendiis sed muneribus; and the people used ultro & viritim conferre principibus, vel armentorum vel frugum aliquid. Tacitus. But now upon the distribution of conquered Towns, Houses, Lands, and Cattle in Britain, a yearly product of Victuals or o­ther service was reserved and allowed to the Saxon Kings by the people; as the people allowed to Joshua his Land, Jos. 19. 46. So as they needed no longer the former course of Offerings, but had enough to maintain their Royal port, and great superfluity of Demesnes besides; as their charity to the Church-men does sufficiently evidence. And by this means all the Lands in England became mediately or immediately holden of the Crown, and a setled maintenance annexed to the same; besides the casual profits upon emergencies, or perquisites of Felons or Fugitives goods, mines of Gold and Silver, Treasure trove, Mulcts for offences, and other pri­viledges, which being originally in the Kings, Mir. 101. 298. were by them granted, and made Royalties in the hands of Subjects, Ll. Edw. c. 4. as at this day.

To the increase of his Majesty and maintenance, there was an access of power, not to make, dispense with, or alter Laws, but to execute and act the Laws established: and against this power there was no rising up, so long as it, like an unfeathered Arrow, gadded not at random. It's true, the Church-men or Prelates checked them often, but could never give them the mate. For peace sake, Kings many times yielded much; yet would no King of Saxon principles allow of any Canon that extolled the Clergy's Authority above that of Kings. And though the placing and displacing of Bishops seemed to be all Ecclesiastical work, yet would not the Kings altogether connive (as the examples of Ina in placing a Bishop in Wells; Offa, in making two Provinces of one; Cenulphus, Malmesb. gest. pontif. lib. 3. gest. Reg. lib. 1 cap. 4. in restoring Polydorus; Edfrid, in deposing Wilfrid; and Edward the Confessor, in making Robert Norman Archbishop of Canterbury) may induce into o­pinion: and for their own safety sake, M. Paris An. 1095. the Prelates thought it wisdom for them sometimes to stoop to that power that at other times they must be beholding to. And therefore though in Synodical disputes they would hold with the Canon, yet in matters of Action would suit with the occa­sion, and thereby taught Princes to account of Canons but as Notions; and politickly to put the honour of Commissioners upon these men. Thus the current of both powers passing in one channel, made the peo­ple drink double Beer at once: the turns both of Pope and King were competently served, and these men had the honour of the two-handed Sword; and all seemed composed into a fair compromise. But the Pope­dom finding its Authority becalmed, endured this but as a burthen, till Pope Nicholas the second's time, who by the like trick commended all to [Page 33] the Crown, as from the Papal Benediction. For Edward the Confessour, upon his foundation of the Abbey of Westminster, sent to the Pope for his allowance and confirmation of what he had done, or was to do; and to make way for the more favour, sent presents, and a confirmation of Romescot. The Pope was so inflamed with such an abundant measure of blessing, as he not onely granted the Kings desire, but also discharged that Abbey from ordinary jurisdiction, made it a peculiar subject onely to the Kings visitation, Concil. Brit. p. 614. and concluded his Bull with this Horn, An. 1066. Vobis vero & posteris vestris regibus committimus advocationem & tuitionem ejusdem lo­ci, & omnium totius Angliae Ecclesiarum; & vice nostra, cum concilio Episco­porum & Abbatum, constituatis ubique quae justa sunt. How the King took the conclusion, I find not, but he could never make better use than by way of estoppel, unless he meaned to sacrifice his own right as a thank-offering to a shadow, which I find not that he or his next Successors ever did. But as touching the Laity, Histories do not touch upon any conceit of with­drawing Monarchical power. It's true, Kings had their excesses, yet all was amended either by the body of the people, when they pleased to ex­amine the matter, or by the Princes fair compliance when complaint was made, and so the Law was saved. Can [...]. cap. 67. And thus upon all the premises I shall conclude, a Saxon King was no other than a primum mobile set in a regular motion, by Laws established by the whole body of the Kingdom.

CHAP XVII. Of the Saxon Nobility.

THe ancient Saxon Nobility in Germany were the chiefest in action both in War and in Peace. That rank of men was continued by three means, viz. by Birth or Blood, by Valour, and by Wisdom. The first was rather at the first a stem arising out of the first two, than a dif­ferent degree or kind: for Noble blood was at the first enobled by brave actions, afterward continued in their honour to their Posterity, till by as base courses it was lost, as it was gained by worthy Atchievements: these were called Adelingi. The Nobility of Action consisted either in matters of War or of Peace. Those of Peace arose principally from Wisdom, which being gained for the most part by much experience, were therefore called Aldermanni, or elder men. The Nobility of War arose somewhat from valour or courage with wisdom, but more from good suc­cess: for many brave and fortunate Commanders have not been very daring; and the bravest spirits, though wise, Ll. Edw. cap. 35. have not been ever honour­ed with good success: these were called Heretochii. Nitard. lib. 4. Nevertheless all these names or titles were used promiscuously in following times, and all cal­led Nobiles: But both that, and Duces, Satrape, and Comites, were all of the Roman Dialect, as the former were of the Saxon. Time also brought others into this honourable Band, viz. The great Officers of the Kings Houshold, and their attests are found amongst the Kings Charters, a­mongst the Nobles; and that much advanced the price of Kings; for he that is worthy to be not onely Lord above Nobles, but Master of some, may by a little courtesie prevail over all. This starry Heaven had seve­ral Orbs; some so high, as in common esteem they were next the Impe­rial Heaven, having a tincture of Royal Blood, and at the next door [Page 34] to the Throne: Tacitus. Others, though not of so clear light, had nevertheless no less powerful influence upon the people, but rather more, by how much more nigher to them. Their power in matters of Peace or Go­vernment of the Commonwealth, was exercised either collectively, or apart and severally. In their meetings they ordered the smaller emer­gencies of the publick in convocating and directing the people. De mi­noribus rebus consultant principes. Tacitus. These minora are such as are subservi­ent to the majora, and pro hic & nunc require suddain order touching any particular part or member of the Common-wealth. At other times they visited their several Territories or Circuits, hearing and determining mat­ters of Controversie, and executing Judgment according to the known Laws, Principes jura per pagos vicosque reddunt; Yet they had Comites of the Country joyned with them, whereof afterward. This was their course in German Saxony; Tacitus. but in England the new stem of Kingly pow­er, arising higher than all the rest, sucked much from them, and kept them under: for the judiciary power was in time drawn up into the Re­gal order, and the Lords executed the same as Deputies from and under him, designed thereto by Writs and Commissions, as it is more particu­larly noted of King Alfred. Miror. cap. 5. Sec. 1. The Lords thus lessened in their judiciary pow­er, carried the less authority in their Votes and Consultations. The King was a perpetual Moderator in that work, and it was no small advantage he had thereby to sway the Votes. Men that are advanced, if they have any excellency, soon gain admiration; and it's a hard thing for one that hath yielded his heart to admiration, to keep it from adoration. This hath mounted up Kings to the top more than their own ambition, and made them undertake what they ought not, because we esteem more highly of them than we ought. I speak not against due, but undue Obe­dience; for had the Saxon Lords remembred themselves, and the true nature of the authority of their King, they needed not to be amazed at their check, Concil. Brit. p. 333. nor to give way to their passion, as they did many times, and advised others to do the like. Nor had Kings by degrees become be­yond controul, and uncapable to be advised. This errour the Lords espied too late, and sometimes would remember their ancient right and power, and did take boldness to set a Law upon the exorbitancy of their King, as in that case of Aethelwolf and his Queen amongst others may appear: but that was like some enterprizes, M. Westm. An. 854. that owe more to extremity of occasion, than to the courage of the undertaker.

CHAP. XVIII. Of the Freemen amongst the Saxons.

THe next and most considerable degree of all the people, is that of the Freemen, called anciently Frilingi, or Free-born, or such as are born free from all yoke of Arbitrary power, and from all Law of compulsion, other than what is made by his voluntary consent; for all Freemen have votes in the making and executing of the general Laws of the Kingdom. In the first they differed from the Gauls, of whom it is noted, Caes. Com. lib. 6. that the Commons are never called to Council, nor are much bet­ter than servants. In the second they differ from many free people, and are a degree more excellent, being adjoyned to the Lords in judicature, [Page 35] both by advice and power, Tacitus. consilium & authoritas adsunt: And therefore those that were elected to that work were called Comites ex plebe, and made one rank of Freemen for wisdom superiour to the rest. Another degree of these were beholding to their Riches, and were called Custodes Pagani, an honourable title belonging to Military service; Lamb. in 4. fol. 72. and these were such as had obtained an estate of such value, as that their ordinary Arms were a Helmet, a Coat of Mail, and a gilt Sword. The rest of the Free­men were contented with the name of Ceorles or Pagani, viz. Rural Clowns, who nevertheless were the most considerable party both in War and Peace; and had as sure a title to their own liberties, as the Custodes pagani or the Country Gentleman had.

CHAP. XIX. Of the Villains amongst the Saxons.

THe most inferiour rank amongst the Saxons were those that of lat­ter times were called Villains; but those also antiently divided in­to two degrees, the chiefer of which were called Free lazzi. These were such as had been Slaves, but had purchased their freedom by desert; and though they had escaped the depth of bondage, yet attained they not to the full pitch of freemen; for the Lord might acquit his own title of bondage, Tacitus. but no man could be made free without the act of the whole body. And therefore the Historian saith, that they are not multum supra servos, or scarce not servants. They are seldom of account in any Fa­mily, never in any City: but in Kingdoms sometimes advanced above the Freemen, yea, above Nobles. Those are now adays amongst the num­ber and rank of such as are called Copy-holders, who have the privi­ledge of Protection from the Laws, but no priviledge of Vote in the ma­king of Laws.

The most inferiour of all, were those which were anciently called Laz­zi or Slaves; those were the dregs of the people, and wholly at the will of their Lord, to do any service, or undergo any punishment. Tacitus. And yet the magnanimity of the Saxons was such, as they abhorred Tyranny: and it was rarely used amongst them, by beating, torture, imprisonment, or other hard usage, to compel them to serve; they would rather kill them as Enemies. And this wrought Reverence in these men towards their Lords, and maintained a kind of generosity in their mindes, that they did many brave exploits; and many times not onely purchased their own freedom, but also brought strength and honour to the Kingdom. And though the insolency of the Danes much quelled this Saxon Noble­ness, yet was it revived again by the Confessors Laws, which ordained, That the Lords should so demean themselves towards their men, that they nei­ther incur guilt against God, nor offence against the King; or, which is all one, to respect them as Gods people, and the Kings Subjects. And thus much of the se­veral degrees of men amongst the Saxons, being the materials of their Com­monwealth; a model whereof in the making and executing of the Laws, and manner thereof, now next ensueth.

CHAP. XX. Of the grand Council of the Saxons called the Micklemote.

IT was originally a Council of the Lords and Freemen; afterwards, Tacitus. when they assumed the title of a Kingdom, the King was a Member there­of, and generally President therein; but always intended to be present, though actually and in his own person by emergent occasions he may be absent, and sometimes by disability of his person he be unmeet to vote or be President in such an Assembly. As it was in the Council at Clano or Cleve in Wiltshire, Malmesb. gest. Reg. lib. 2. cap. 9. when the great case between the Monks and mar­ried Priests was concluded; the King was absent, as the story saith, be­cause of his minority; and yet if Writers say true, Lib. 5. An. 978. he was then in the Sixteenth year of his age. The Lords were also nevertheless in the same condition of priviledge as formerly; and though it appeareth that the Kings had gotten the priviledge of summoning the grand meeting in his own name, yet it was by advice of the great men; and being met, their Votes were no other in value than as formerly: for all their Laws were ex consilio sapientum, and (for ought can appear out of antiquity) the vote of the meanest continued as good as of the greatest, arbitrium est penes plebem. Tacitus. And thus the Micklemote or Wittagenmote of the Saxons in England, continued in the King, Lords, and Freemen, by the space of One hundred and fifty years, and in some parts of England nigh Two hundred years before ever the Roman Bishops foot entred, or the Roman-Clergy crept into the Councils of State. Afterwards the Prelates were admit­ted de bene esse, for advice, as sapientes, and continued by allowance; how canonically, ipsi viderint, for I understand it not (especially as the Scri­pture was then expounded) Nemo militans Deo implicet negotiis saeculari­bus: yet if they be allowed (what in those days they ordinarily took up) a degree of policy above devotion, that knot is also soon untied. I say, they entred as Sapientes, not as Prelati, or Church-governours; for then they had holden the same power in Church-matters agitated in the Witta­genmote, that they had usurped in their Synods which they held onely for Church-visitation; which they could never have, because the Sapientes Regni had their votes therein as freely as they. Nor could the Prelates by any Law entitle themselves to such power or priviledge, so contrary to the priviledge of the Wittagenmote. For though it be true, that the Ger­man Priests had a liberty to be present in these grand Assemblies, and to have some presidency therein, as to command silence, &c. yet it is not title to these, Tacitus. unless they will interest themselves as their Successors, to possess by a jus Divinum that jus Diabolicum (which those Priests formerly had) in a way of immediate providence; somewhat like the possession of the Mantle of Eliah found by Elishah. They might, I grant, plead the title from Kings; but, it must be granted also, that Kings as yet had no more power over the Church than in the Commonwealth. Nor could they have that from the Lords, which the Lords never had, but was ever ac­counted amongst the majora, and of which the Wittagenmote had the only cognizance, as it will appear in some particulars ensuing.

Unto the King, Lords, and Clergy, must be added, as I said, the Freemen, to make up the Micklemote compleat; and though it be true that no mo­nument of story speaks of this grand meeting from their being in Ger­many, [Page 37] until after the coming of Austin; yet whenas the Saxon Histories then find them in the same condition that the German story leaves them, it is very probable that in the interval they continued their wonted cu­stom, although they had no Learning to leave monuments thereof unto the world, And hereof the examples are not rare, in those remembran­ces that those ancient times have left us. For within six years after Au­stins arrival, Concil. Brit. 126. Aethelbert calls a Common-Council tam cleri quam populi. Ina after him made Laws suasu & instituto Episcoporum, omnium senatorum, & natu majorum sapientum populi; in magna servorum Dei frequentia. Ll. Sax. Lamb. Cantab. fol. 2. Alfred after him reformed the former Laws consulto sapientum. Ibid. fol. 22. After him Aethel­stan called a Council, Ibid. fol. 53. in which was the Archbishop, and with him the Optimates & sapientes frequentissimi, besides others, whereof I shall treat now that I come to the matters handled in this Court.

The matters in agitation in the Wittagenmote generally, were all both of publick and private concernment. That which concerned the pub­lick, were such as regarded removal of inconveniencies, such as are Laws for Leagues and Affinity with other Nations for preventing of War. And thus became the Saxons and Britons united, and the mor­tal feud between those two Nations laid aside, Concil. Brit. p. 219. and they made one: And the Saxons and Danes reconciled, Ll. Lamb. Cantab. fol. 36. by a Covenant agreed unto, and sworn between both Nations. The like also may be said of their ma­king of War of defence against Forrain Invasion. Matters of publick and general charge also were debated and concluded in that Assembly, Ll. Edw. Lamb. Cant. fol. 139. as the payment of Tithes, it is said they were granted Rege, Baronibus, & Po­pulo. Such also as concerned the Church; for so Edwin the King of Northumberland, upon his marriage with a Christian Lady, being impor­tuned to renounce his Paganism, answered, he would so do, Antiq. Brit. p. 51. if that his Queens Religion should be accounted more holy and honourable to God by the wise men, and Princes of his Kingdom. And all the Church-Laws in the Saxons time were made in the Micklemote. Concil. Brit. 127. Monasteries were by their general consent dedicated, Ibid. 321. and their Possessions confirmed. The City of Canterbury made the Metropolitan. Matters also of private re­gard were there proceeded upon, as not onely general grievances, but perverting of Justice in case of private persons: as in that Council cal­led Synodale concilium under Beornulfus the Mercian King, Ibid. 332. quaesitum est quo­modo quis cum justitia sit tractat [...], seu quis injuste sit spoliatus. The name of which Council called Synodal, mindeth me to intimate that which I have often endeavoured to find out, but yet cannot, viz. that there was a­ny difference between the general Synods and the Wittagenmote, unless merely in the first occasion of the summons. And if there be any cre­dit to be allowed to that book called, The Mirrour of Justices, Cap. 1. Sec. 3. it tells us, that this Grand Assembly is to confer of the Government of Gods peo­ple, how they may be kept from sin, live in quiet, and have right done them, according to the Customs and Laws; and more especially of wrong done by the King, Queen, or their Children; Sec. 2. for that the King may not by himself or Justices determine Causes wherein himself is a­ctor. And to sum up all, Cap. 4. Sec. 11. it seemeth a Court made to rise and stoop according to occasion.

The manner of debate was concluded by Vote, and the sum taken in the gross by noise; like to the Lacedemonians, Tacitus. who determined what was pro­pounded clamore non calculis; yet when the noise was doubtful, Plut. Lycurg. Thucyd. lib. 1. de Lacedem. they took the votes severally. The meeting of the Saxons at this Assembly in the first times was certain, viz. at the new and full Moon. Tacitus. But Religion [Page 38] changing, other things changed these times to the Feasts of Easter, Pen­tecost, and the Nativity; at which times they used to present themselves be­fore the King at his Court, for the honour of his person, and to consult and provide for the affairs of his Kingdom; and at such times Kings used to make shew of themselves in their greatest pomp, crowned with their Royal Crown. An. 1158. This custom continued till the times of Henry the second, who at Worcester upon the day of the Nativity offered his Crown upon the Altar, and so the Ceremony ceased.

This grand Assembly thus constituted was, holden sacred; and all the Members, or that had occasion therein, were under the Publick faith both in going and coming, unless the party were fur probatus. If a Member were wronged, the Delinquent payed double damages, and fine to the King, Concil. Brit. p. 127. by a Law made by Ethelbert above a Thousand years ago. This priviledge of Safe pass being thus ancient and fundamental, and not by any Law taken away, Ll Canut. p. 2. cap. 79. resteth still in force. But how far it belongeth to such as are no Members, Ll. Ed. cap. 35. and have affairs nevertheless depending on that Court, I am not able to determine; yet it seemeth that Priviledge out­reacheth Members: unless we should conceit so wide, that the State did suppose that a Member might be a notorious and known Thief.

Lastly, this Assembly, though it were called the Wittagenmote, or the meeting of wise men, yet all that would come might be present, and inter­pose their liking or disliking of the Proposition, si displicuit sententia fre­mitu aspernatur, si placuit frameas concutiunt. And some hints I meet with, that this course continued here in England: for some Presidents run, in magna servorum Dei frequentia; Ll. Sax. Lamb. p. 1. and that of Ina, commune concilium senio­rum, & populorum totius Regni, Concil. Brit. 219. in another Council by him holden. The Council of Winton, Ingulfus. An 855. is said to be in the presence of the great men, aliorumque fidelium infinita multitudine: and it will appear that it continued thus after the Norman times. What power the vulgar had to controul the Vote of the wise men, I find not; fremitu aspernabantur, it is said, and probably it was a touch of the rudeness of those times; for it was not from any positive Law of the Nation, but a fundamental Law in Nature, that wise men should make Laws; and that the supream Judica­ture should rest in the Wittagenmote, was never an honour bestowed upon it by the Saxons, but an endowment from the light of Reason; which can never be taken away from them by that headless conceit provoco ad popu­lum, but that Body must be as monstrous as the Anthropophagi, whose heads are too nigh their belly to be wise.

CHAP. XXI. Of the Council of Lords.

THis in the first condition was a meeting onely of the Lords, for dire­ction in emergent cases, concerning the government and good of the Commonwealth, and for the promoting of administration of Justice; these the Historian calls Minora, because they were to serve onely the present passions of State. Afterwards, when they had gotten a King into their number, they had so much the more work as might concern due cor­respondency between him and the people, and of themselves towards both. This work was not small, especially in those times of the growth of [Page 39] Kings, but much greater by the access of Prelates into their number; with whom came also a glut of Church-affairs, that continually increased according as the Prelates ambition swelled; so as this Council might seem to rule the Church alone in those days, whenas few motions that any way concerned Church-men, but were resolved into the Prelatical cogni­zance, as the minora Ecclesiae. And thus under the colour of the minora Ecclesiae, and the minora Reipublicae, Mag. cent. 8. cap. 9. this mixt Council of Lords came by degrees to intermeddle too far in the magnalia Regni. An. 712. For by this means the worshipping of Images and the Mass was obtruded upon the Saxons by the Roman Bishop and his Legate, Concil. Brit. p. 189. and the Archbishop of Canterbury; An. 694. and decreed, That no Temporal or Lay-person shall possess any Ecclesiastical possessions. That elections of Ecclesiastical persons and Officers shall be by Bishops. That the possessions of Church men shall be free from all Lay-ser­vice and Taxes. And in one sum, they did any thing that bound not the whole body of the Freemen. In which had these Lords reflected more upon the office, and less upon the person, and not at all upon their private interest, they doubtless had been a blessing to their Generations, and a Golden Scepter in the hand of a righteous King: But contrarily missing their way, they became a Sword in the Kings hand against the Subjects, a snare to the Kingdom; and, had not the Wittagenmote in their meeting al­layed those distempers, the Saxon-government had been little other than a Commonwealth reversed.

CHAP. XXII. Of the manner of the Saxons Government in time of War.

AS the condition of States or Kingdoms are diversly considered in War and Peace, so also must their Government be: For howe­ver War in it self be but a feaverish Distemper in a Commonwealth, yet in some cases it is as necessary, as a kindly Ague in due season is for the preservation of the Body; which many times takes distemper rather from the excellency of its constitution, than from the abundance of hu­mours. Nor did the temper of the Saxon Commonwealth ever shine more than in War, while it set a Law upon that which ordinarily is ma­ster of all mis-rule and confusion, and so fought by rule rather than by passion. Tacitus. Their Chief in the first times was chosen by the Freemen in the Field, Ll. Ed. cap. 35. either at the Wittagenmote or the Folkmote, according to the extent of his command; being carried upon a Shield born upon their shoulders, like as now Knights of the Shire are. This Emblem they entertained him with, to declare their trust in him, and the work that was expected from him. His first title was Heretock, afterwards he was called Duke or Dux; the latter whereof turned to a bare Title in the conclusion, but the for­mer maintained its own honour so long as the name lasted. Tacitus. After his election, all sware to be at his order, and not to forsake him. This was a trick of imbased times: for though the Lacedemonian Law was positive, that none should flie or break his Rank, but get the Victory or die; yet were they neither bound by Oath or Penalty, shame in those times being ac­counted worse than death by those brave minds. But times growing more old, grew also more base-spirited, and men could not be (drawn in­to the field) holden in Rank by Oaths or Honour; and this occasioned [Page 40] that Law of Ina the Saxon King, Ll. Sax. Lamb. Cantab. 10. that in such case a Country-Gentleman should be fined One hundred and twenty shillings if he were landed; but if otherwise, Concil. Brit. p. 528. Sixty shillings, and the Yeoman Thirty shillings; and afterwards the penalty was increased to the forfeiture of all the estate of the Delinquent. An. 1009. In their Wars they went forth by bodies collectively, as they were united by the law of pledges; this made them stick close to­gether for the honour of their Families and Friends, and rendered their encounters mortal, Tacitus. and to the worsted party commonly fatal: for once beaten in the field, they could hardly recover either by rallying or gather­ing a new Army. Probable it is that the Lords might have their Villains to follow them in the Battle, but the strength consisted of the Freemen; and though many were bound by tenure to follow their Lords to the Wars, and many were Voluntiers, yet it seems all were bound upon call under peril of Fine, Ll. Ed. cap. 35. and were bound to keep Arms for the preservation of the King­dom, their Lords, and their own persons; and these they might neither pawn nor sell, but leave them to descend to their Heirs, and in default of them, to their Lord, and in default of him, to their chief pledge, and for want of such to the King. They mustered their Arms once every year both in Towns and Hundreds, viz. the morrow after Candlemas; and such whose bodies were unfit for service, were to find sufficient men for service in their stead. Ll. Canut. c. 58. They were strict in their Discipline, if they followed their rule, which was made not by the arbitry of the General, but by Parlia­ment. These, amongst other scattered principles concerning Sea-affairs, may serve to let us know that the Law-martial, and that of the Sea, were branches of the positive Laws of the Kingdom, setled by the general Vote in the Wittagenmote, and not left to the will of a lawless General or Commander; so tender and uniform were those times both in their Laws and Liberties.

CHAP. XXIII. Of the Government of the Saxon Kingdom in times of peace; and first of the division of the Kingdom into Shires, and their Officers.

IF the Saxon Government was regular in time of War, how much ra­ther in time of peace! All great works are done by parcels and de­grees; and it was the Saxons ancient way in Germany, to divide their Ter­ritory into several Circuits or Circles, and to assign to each their several Magistrates, all of them ruled by one Law; like one soul working in se­veral Members to one common good. Thus they did here in England, having found the Land already divided into several parts called Comitatus, or Counties, from the word Comes, that signifies a Companion; and the Counties thence called, are nothing but Societies or Associations in publick charge and service. But the Saxon word is Shire or Share, that is, a por­tion or precinct of ground belonging to this or that person, or great Town, and bearing the name of that person or Town; and sometimes of the scituation of the people, as North or South folk, East or South Sex or Saxons. Seld. Tit. Hon. This division by the names seems to be of Saxon original; and though by the testimony of Ingulfus and other Writers, it might seem to be done by Alfred; yet it will appear to be more ancient, if the Reader [Page 41] mind the grant of Peter-pence made by King Offa, wherein is recorded the several Diocesses and Shires out of which that grant was made, un­der the very same names that they own at this day; M. Westm. An. 794. and that was more ancient than Alfreds time by the space of eighty years.

Each of these Shires or Counties had their two chief Governours for di­stributive justice; of these the Sheriff was more ancient and worthy Offi­cer, being the Lieutenant, Sheriffs. and aided by the power of the County in certain cases; for his Commission extended not to leavy War, but to maintain Justice in that County, and within the same; and in this work, he was partly ministerial, and partly judicial: in the one he was the Kings Ser­vant to execute his Writs; in the other he regulated the Courts of Justice under his Survey. Ll. Edw. c. 35. He was chosen in the County-Court called the Folk­mote, by the Votes of the Freeholders; and as the King himself, and the Heretock, were intituled to their honour by the peoples favour.

The Coroner, though in original later, Coroners. was nevertheless very ancient: he was the more Servant or Officer to the King, of the two. His work was to enquire upon view of Manslaughter, and by Indictment of all Felonies as done contra Coronam, Miror. cap. 1. Sect. 13. which formerly were only contra Pacem, and triable only by appeal. And also he was to enquire of all Escheats and Forfeitures, and them to seize. He was also to receive appeals of Fe­lonies, and to keep the rolls of the Crown-pleas within the County. It's evident he was an Officer in Alfreds time; Miror. p. 300. for that King put a Judge to death, for sentencing one to suffer death upon the Coroners record, with­out allowing the Delinquent liberty of Traverse. This Officer also was made by election of the Freeholders in their County-Court, Fitz N. Br. 163, 164. as the She­riff was, and from amongst the men of chiefest rank in the County, and sworn in their presence; but the Kings Writ led the work.

CHAP. XXIV. Of the County-Court, and the Sheriffs Torne.

THE Government of the County in times of peace, consisted much in the administration of Justice, which was done in the publick meetings of the Freeholders; and their meetings were either in one place, or in several parts of the County: in each of which the Sheriff had the managing of the acts done there. Folkmote, or County-court. The meeting of the Free-men in one place was called the Folkmote by the Saxons (saving the judgment of the honourable Reporter, Coke Instit. 2. p. 69.) and of latter times the County-Court: the work wherein, was partly for consultation and direction con­cerning the ordering of the County, for the safety and peace thereof; such as were redress of Grievances, election of Officers, prevention of dan­gers, &c. and partly it was judicial, Miror. p. 147. in hearing and determining the com­mon Pleas of the County, the Church-affairs, and some trespasses done therein; but not matters criminal, for the Bishop was Judge therein, to­gether with the Sheriff; and by the Canon he was not to intermeddle in matters of Blood: yet neither was the Bishops nor Sheriffs work in that Court, other than directory or declaratory; for the Free-men were Judges of the act, and the other did but edocere jura populo; Ll. Canut. Miror. cap. 1. Sec. 15. yet in special cases upon petition, a Commission issued forth from the King to certain Judges of Oier, Miror. cap. 5. Sec. 1. to joyn with the others in the hearing and determining of such particular cases. But in case of injustice or errour, the party grieved had [Page 42] liberty of appeal to the Kings Justice. Ll. Canut. Ll. Edgar. Nor did the Common Pleas originally commence in the County-Court, unless the parties dwelt in several Liberties or Hundreds in the same County; and in case any mistake were in the commencing of Suits in that Court, which ought not to be, upon complaint, the Kings Writ reduced it to its proper place; and in this also the Kings own Court had no preheminence. In those an­cient times this County-Court was to be holden but twice a year, Concil. Brit. p. 197. tit. 22. Ll. Edw. cap. 35. by the constitution of King Edgar, but upon urgent emergencies oftner; and that either by the Kings special Writ, or if the emergent occasions were sudden and important, by extraordinary summons of ringing the Moot­bels. Unto this Court all the Free-men of the County assembled to learn the Law, to administer Justice, Ll. Edw. cap. 35. to provide remedy for publick in­convenience, and to do their fealty to the King before the Bishop and Sheriff upon Oath; and in the work of administring Justice, causes con­cerning the Church must have the precedency; Ll. Edw. cap. 4. so as yet the Canon-Law had not gotten footing in England.

The other Court wherein the Sheriff had the direction, Sheriffs Torne. was in the meeting of the Free-men in several parts of the County; and this was anciently, Miror. cap. 1. Sec. 16. and now is called the Sheriffs Torne; which simply considered, is but a Hundred-Court, Ll. Edgar. cap. 5. or the Sheriffs Torne to keep the Hundred-Court. It was ordered to be kept twice every year, viz. at the Lady-day and Mi­chaelmas, or soon after. Ll. Edw. cap. 35. Unto this Court all the Free-holders of the Hun­dred repaired, Ll. Canut. p. 2. cap. 17. and there they, the Bishop and Sheriff, executed the same power and work for kind, that they did in the County-Court. In this Court all the Suits in the Hundred-Court depending, had their determination, and others had their commencement and proceedings, as well the Pleas of the Crown as others. Some have conceived it to be a County-Court, or superiour thereto; but there being no ground thereof, I conceive it to be no other than a Visitation of the County by parcels or in circuit.

CHAP. XXV. Of the Division of the County into Hundreds, and the Officers and Court thereto belonging.

COunties were too great to meet upon every occasion; and every oc­casion too mean to put the whole County to that charge and trou­ble: and this induced sub-divisions; the first whereof is that of the Hun­dred, now, and also anciently so called; but as ancient (if not more) is the name Pagus; for the Historian tells us, that the Germans, in the exe­cuting of their Laws, a hundred of the Free-men joyned with the chief Lord per pagos vicosque, Tacitus. which first were called Centenarii, or Hundre­ders, from their number; but used for a title of Honour, like the Triarii. And as a second hereunto, I shall add that testimony of the Council at Berkhamsted, which speaking the reduction of Suits from the Kings Court ad pagi vel loci praepositum; in other places it is rendred, to the Go­vernours of the Hundred or Burrough. And at this day in Germany, their Country is divided into Circuits, called Centen or Canton, and Centengriecht; and the Hundreders they call Centgraven, or Hundred-chiefes, whether for Government in time of peace, Cluer. lib. 1. cap. 19. or for command in time of War; the latter [Page 43] whereof, the word Wapentake doth not a little favour. Amongst these, one was ( per eminentiam) called the Centgrave or Lord of the Hundred, and thereunto elected by the Free men of that Hundred, and unto whom they granted a stipend in the nature of a Rent, Malmesb. Reg. gest. p. 54. called Hundredsettena, toge­ther with the government of the same. The division of the County in this manner, was done by the Free-men of the County, who are the sole Judges thereof, if Polydores testimony may be admitted; and it may seem most likely that they ruled their division at the first, according to the multitude of the Inhabitants; which did occasion the great inequali­ty of the Hundreds at this day. The Government of the Hundred rested at the first upon the Lord and the Hundredars; Ll. Alured. cap. 4. but afterwards by Alfred they were found inconvenient, because of the multitude, and reduced to the Lord or his Bailiff, and twelve of the Hundred; and these twelve were to be sworn, neither to condemn the Innocent, nor acquit the Nocent. This was the Hundred Court, which by the Law was to be holden once every Month; and it was a mixt Court of Common-pleas and Crown-pleas: for the Saxon Laws order, Ll. Edw. 35. that in it there should be done justice to Thieves; Ll. Aetheldr. 1. and the trial in divers cases in that Court is by Ordeale. Their Common-pleas were cases of a middle nature, Ll. Aethelst. 20 as well concerning Eccle­siastical persons and things, as secular; Ll. Edw. cap. 32. for the greater matters were by Commission, or the Kings Writ removed, Ll. Aetheldr. cap. 1. as I formerly observed; all Free-holders were bound to present themselves hereat. Lindenbrog. Ll. Allem. & Saxon. And no sooner did the Defendant appear, but he answered the matter charged against him, and judgment passed before the Court adjourned; Concil. Brit. p. 273. except in cases where immediate proof was not to be had, Tacitus. albeit it was holden unreaso­nable in those days to hold so hasty process: Glossar. 155. and therefore the Archbishop of York prefers the Ecclesiastical or Canonical way before this. Lastly, in their meeting, as well at the Hundred as County-Court, they retained their ancient way of coming Armed.

CHAP. XXVI. Of the Division of the Hundreds into Decennaries.

THis was the last subdivision of the County, and that rested upon the persons; and it was either not at all, or not so observable, as to be worthy of the Roman story, and therefore may rather be thought an extract from Moses Law, introduced by Alfred or his direction. I say, this rested on the persons, and not upon the place; for though the Cente­ners were comprehended within certain bounds, yet the Decenners were not limited but only within the limits of the Hundred. And of these also, it appeareth to me there were divers sorts; for such matters of con­troversie that did arise amongst the Decenners, if of greater moment, were referred to the chiefer Justices, which were appointed super decem decanes, which I conceive were ten chief pledges; and these might bear the names of the Centeners, although they be not the Centgraven: and the rather I incline thereto, because in all probability there must needs be above one hundred Free-holders in Hundredo; and all Free-men were Decenners, that is, ranked into several tens; Ll. Canut. c. 19. each one being pledge for others good abear­ing, and in case of default, to answer it before the Judge, and in case of default of appearance, his nine pledges should have one and [Page 44] thirty days to bring the Delinquent forth to justice. If this failed, then the chief of those Decenners by the votes of that and the Neighbour Decen­ners, was to purge himself and his fellow-pledges, both of the guilt of the fact, and of being parties to the flight of the Delinquent. And if they could not this do, then were they by their own Oaths to acquit them­selves, and to bind themselves to bring the Delinquent to justice as soon as they could; and in the mean time, to pay the damage out of the E­state of the Delinquent; and if that were not sufficient, then out of their own Estate; Ll. Edw. cap. 15. but if the Delinquents Estate was sufficient, the surplussage thereof remained with the pledges. And lastly, the Master of the Fami­ly was a pledge for his whole Family. Ll. Canut. c. 28. This was the Law of Decenners, and may seem to be somewhat a rigorous Law, not only in case of De­linquency, but also for their abode; Ll. Alured. cap. 33. for none of them might depart from their dwelling without consent of his fellow-pledges, Ll. Canut. p. 2. cap. 15. nor out of the County without allowance of the Sheriff, or other Governour of the same. Ll. Edw. c. 20. And if any controversie arose between the pledges, the chief pledge by them chosen, called also the Dean or Headburrough, may deter­mine the same; but this held only in matters of lighter consequence.

CHAP. XXVII. Of Francheses: and first of the Church-Francheses.

WE have hitherto trod in the road-way of the Government of the Common-wealth; but private regards have made by-paths, which we must trace, or else the footsteps in many particulars will remain unknown. These are called Exemptions, but more or­dinarily Francheses, from which scarce any part of the Kingdom remain­ed free; and are to be considered, either in regard of the place or person. In the latter I intend that of the Church-men, whose Persons and Estates, in many particulars, were exempted from the civil power of this King­dom. Their persons devoted to a peculiar work, they would have to be under a peculiar Law, called the Canon-Law, which at the first extended only to their own persons, and that only pro reformatione morum: for so an Archbishop tells us, Concil. Brit. p. 258. that it did teach quomodo Canonici, id est, regulares Clerici vivere debent; Ll. Edw. Conf. but when it grew to its full charge, it gave a louder report, Quicunque aliquid tenuerit, vel in fundo Ecclesiae mansionem habuerit, extra curiam Ecclesiasticam non placitabit quamvis foris fecerit. And thus as Church-ground increased by the blind charity of those times, so long Church-men multiplied, and the Canon inlarged from the persons of re­gulars to all Clergy-men, and from them to their Tenants and Neigh­bours; from thence to certain Spiritual or Ecclesiastical crimes or scan­dals, wherever they were found; and wherever it touched, it took and bound by Excommunication, Ll. Edw. cap. 7. and upon significavit, being first delivered to Satan, they delivered him over to the Sentence of the Law, to be impri­soned. If the offender be out of reach by the space of thirty and one days, he is Outlawed; so as there is no way left to escape the Church-fury.

CHAP. XXVIII. Of the second Franchises, called the Marches.

FRanchises of the place, were such as were limited within precincts of place, and annexed thereto; and of this sort first were those of the borders, of which those are the most ancient that bordered the Britons, now called the Marches of Wales, in which was a peculiar Government, so far as concerned administration of justice; for otherwise the subjects each of them submitted themselves to the service of their own Prince. This was therefore a third, different, and mixt Government, agreed upon joyntly between the Britons and Saxons, who after a long and burden­some War, (wherein both peoples were well wearied) by degrees became Friends, entered Traffick, and into the strictest Societies by Marriage. Thus finding the sweetness of peace, they provide against future occasi­ons of strife that might arise in commerce by the justling of two Laws to­gether; and agree in one Law, and upon a certain number of Judges e­lected by common consent, who were to see to the execution of these Laws as joynt Assessors. From these, as I conceive, arose those which are now called the Lords Marchers, and were at the first twelve in number, viz. six Saxons, and six Britons. It seemeth this form of Government was first instituted by Aetheldred, Ll. Aetheld. cap. 3. and by way of prescription or custom, con­tinueth till this day: and as it was the birth of truce, so for the future became both Mother and Nurse of peace between those two peoples, like the twi-light between the day and night, until both were brought un­der one head, and by divine providence setled in a lasting day.

CHAP. XXIX. Of County-Palatines.

OF the same sort of Franchises were these which are called County-Pa­latines, which were certain parcels of the Kingdom assigned to some particular person, and their Successors, with Royal power therein to exe­cute all Laws established, in nature of Province holden of the Imperial Crown: and therefore the Kings Writ passed not within the precinct, no more than in the Marches. These were occasioned from the courage of the Inhabitants that stoutly defended their Liberties against the usurping power of those greater Kings that endeavoured to have the Dominion o­ver the whole Heptarchy, and not being easily overcome, were admitted into composition of Tributaries; and therefore are found very ancient: for Alfred put one of his Judges to death for passing Sentence upon a Ma­lefactor, for an offence done in a place where the Kings Writ passed not; Miror. cap. 5. Sec. 1. and the same Author reciting another example of his justice against ano­ther of his Justices, for putting one to death without president, rendreth the Kings reason, for that the King and his Commissioners ought to determine such cases, excepting those Lords in whose precinct the Kings Writ passeth not.

CHAP. XXX. Of Francheses of the Person.

FRancheses of the Person are such Liberties annexed unto the Person, as are not absolute Lordships, but only tending thereto, and limited within a Precinct, but not annexed thereto: and these are matters of profit rather than power; as those of Bury St. Edmonds, Doncaster, Dorchester, Circester; all which were in the Saxon times: Miror. cap. 5. and these or some of them had juridical power in cases of Felonies and Robberies arising within that Precinct, Infangtheoff. so as the Delinquent was both Inhabitant and taken within the same; this was called Infangtheoff: and if upon fresh pursuit made by the right owner or possessor, the Delinquent was taken with the prey in his possession, or as the old Dialect is, Handhaben Backhearend; Ll. Edw. cap. 26. Then was he carried immediately before the Coroner of that Liberty, and the Sake­ber, or party wronged, made his proof by Witnesses; and thereupon judge­ment forthwith passed without answer, and execution immediately en­sued. Some Liberties had Outfangtheoff, that is, the trial and forfeiture of such Delinquents, Outfang­theoff. being no Inhabitants, and yet taken within the Liberty; or Inhabitants, and not taken within the Liberties: Bracton. lib. 3. tract. 2. cap. 35. but this Trial was al­ways by Jury. The Antiquity of these Liberties are not obscurely ma­nifested in their names, Briton. cap. 15. and more clearly by the Saxon Laws and Acts; for it's observed of Alfred, Ll. Edw. cap. 21. that he seized a Franches of Infangtheoff, because the Lord of that Franches would not send a Felon (taken within his Liberty for a Felony committed without the same) to the Goale of the County, as he ought to have done. Miror. cap. 5. Sec. 1. Other Liberties there were granted also by Charter; a tast whereof may be seen in one Grant made by King Edgar, to the Monastery of Glastenbury, wherein was granted Sack, Hamsockne, Friderbrece, Forstel, Teme, Flemone, Ferdre, Hundred Setene, Sock, Tholl, Adae, Horda, Bufan Orderan, Bene Orderan; the particular natures of each may be observed in the Glossaries; all of them being allowed to the Crown by the Law, and by the advice of the Council of Lords granted over to these Grantees in nature of Deputies to the King, to possess both the power and profit thereto belonging.

CHAP. XXXI. Of Manors.

NEvertheless, most of these Liberties, if not all of them, were ma­ny times granted by Kings as appendant to Manors; which were Francheses of smaller circuit, being at the first portions of ground grant­ed to some particular persons, and by them subdivided and granted over to particular persons to hold of the Grantors by Rents, Services, and suit to one Court; all being no other than the spoils of War, and re­wards of valour, or other service. These in their collective nature are called a Manor, and by continuance of time become a kind of body politick. In Antiquity it is called Mansum, from the Man­sion-house, although it is not of the Essence of a Manor, nor ought the [Page 47] words of Bracton to be construed according to the literal sense; Bracton. fol. 212. for the house may be destroyed, and yet the Manor continue; and the ground was granted in tenure before any house built thereupon. The quantity of the ground thus given to hold by Service, was according to the plea­sure of the Lord more or less, and therefore might extend into divers Pa­rishes; as on the other part, one Town might comprehend divers Manors. The Estate that was granted, depended partly on the condition of the Grantee: Fleta. lib. 4. cap. 15. for some were servi or Bond-men, and their Estate was altoge­ther at the will of the Lord, as was also the benefit; but the servants merit, and the Lords benignity concurring with some Conscience of Re­ligion, as the light grew more clear, abated the rigour of the tenure in­to that which we now call Copy-hold. Other Estates were made to the Free men, which in the first times were only for years; albeit therein they were not niggardly, for they sticked not at Leases for a hundred years, Ingulfus Croyl. yet with a render of Rent, which in those days was of Corn or other Victual; and thence the Leases so made were called Feormes or Farmes, which word signifieth Victuals. But times ensuing, turned the Victual into Money, and terms of years to terms of lite and inheritance, retaining the Rents, and those called Quit-rents, or the Rents of those persons that are acquitted or free. Gloss. 1. 58. Ll. Saxon. 16, 17. Lamb. But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a re­lief: which were not left to the will of the Lord, but was put in certain­ty, in the very letter of the Law: Gloss. 348. Ll. Canut. p. 1. cap. 69. for according to each mans degree, such was his Relief or Heriot.

But over and above all, they reserved special service to be done by the person of the Tenant, or some other by his procurement, of which those that were their servi or villains were at the will of the Lord: others had their particular service set down in their grants. These concerned either War or Peace; the former was afterwards called the service of the Knight or Souldier; the latter the service of the Husbandman or Plough. That of the Souldier was the more honourable, Knight-service. and suitable to the old German trade; Pigrum & iners videtur sudore acquirere quod possis sanguine parare: and the work was to defend the Kingdom, the Lords person and Honour; and to this end he was ever to have his weapons in readiness, which gave name to the service, and altered as times and customs changed. This service by custom, from a work degenerated into the bare Title, and became a dignity: and the men named, or rather intitu­led Milites; and many of the Saxon Charters were attested by men bear­ing that Title; yet the service itself was far more ancient, and called ser­vicium loricae; of which sort also were the Custodes pagani that wore a Helmet, a coat of Mail, and a guilt Sword: not unlike the old German way of calling forth of their Tirones to the war. Tacitus. Of this rank some were more eminent than others; for some bare the single title of Knight, and, it seemed, served on foot: others served on horseback, and were called Rad knights, or Knights-riders, as Bracton noteth; Selden. Spicil. and these I take to be the Vavasours, noted in the Conquerours Laws: for that their relief is a Helmet, a Coat of Mail, a Shield, a Sphear, and a horse. Now for the maintaining of this service, they had Lands and Tenements called Knights-Fees, which bound the owner to that service, into whose hands soever they came, to be done either by the person of the owner, or other fit person by him procured, and therefore were discharged from the pay­ment of all Taxes and Tollage, which was the Law of the Goths of old, and remains in Sweden at this day. Co. Litlet. 75. Bureus. The number of these Fees [Page 48] much increased, so as in the Conquerours time they were above sixty thousand, which was a mighty body for a small Island, and brought much honour to the Nation.

But the profit arose from beneath, I mean from the soccage tenure or service of the Plough, Soccage tenure. which in the first times was performed by those that were unfit for the service of the Wars, either being green and young, or decrepit and aged; and sometimes by the Women. But after that the Saxon Conquest was at a stop, Tacitus. and that no more was to be got­ten by Blood, men endeavoured to satisfie their desires by sweat, and turned their Swords into Plough-shares; and thus the Husbandry increa­sed exceedingly, and hath proved the best Pillar of the Common-weal; the nature of this tenure is fully set out by the Reporter; nor can I add thereto more than the Law of the Confessor concerning these men, viz. That no man might trouble them, Co. Litlet. fol. 86. but for their Rent, nor any Lord thrust them out of their Farm, so long as they do their service. Ll. Edw. c. 33. Spiceleg. And thus it appeareth, that the service became in nature of a condition subsequent, begetting an increaser of the Estate, Ll. Edw. c. 33. which by continuance wrought an inheritance, and so the Title of Entry was turned wholly into distresses for service not performed; yet the Lord was no looser thereby, so long as Heriots, Rents, and Services accrewed unto him.

CHAP. XXXII. Of Courts incident and united unto Manors.

BY Grants made by Lords unto Tenants already noted, the Lords had power by common right to call their Tenants before them, and en­quire concerning their payment of Rents, and performance of service, which became Courts of constant appointment: of which sort there-were two, one for the Free-men, the other for the Bond-men; and this brought forth another service, which we call suit of Court. Court-leet. The Court of Free-men was holden from three weeks to three weeks, wherein the Free-men, as in the Hundred and County were Judges of the fact, Miror. p. 17. and from them na­med, as at this day, Court-leet, Lind. gloss. Albin. Hist. Saxon. p. 72. or the Court of the Liti, of such as are manumitted or Free-men. In this Court all Actions or Suits between the Free-men of the same Manor, and within the same arising, were determi­ned; nor could any Court (no not the Kings) intermeddle with such Suits before Trial had; but by the Lords allowance. And upon this priviledge, the Writ of right Patent was grounded. But the full nature of this Court is not within my intention, but I must refer the Reader to the Law-books. F. N. Br. 2. For it was the least part of the work and power which this Court obtained by continuance of time; in regard that Manors ex­ceedingly multiplied, so as no part of the Land was left free; and many one of them extended into divers Decennaries, the Lords obtained great power over them, and had of Kings, grants of view of Frank-pledge within their se­veral Lordships; View of Frank-pledge. and further power of inquiry, and punishing of mat­ters of publick nusance, and such as were contra Pacem & Coronam; which by custom became annexed unto the Court-leet. The nusances of Copy-holds being done to disherison of the Lord, and not proper [Page 49] for the Court of publick inquiry. The Judge of this Court-leet was the Lord, or his Steward, for the directory part; and the Steward was pro­perly Coroner within the Mannor to take Presentments, and certifie them to the Coroner of the County. And thus this Court swallowed up much of the power of the Decenners Court in the very infancie, so as we find no foot-steps of any Writ of Right to the Decenners, or Chief-pledges; but contrariwise many views of Frank-pledge granted to particular persons in the time of Alfred: Miror. cap. [...]. Sec. 1. and many things done by the Chief pledges in the Courts of these Mannors, as is to be yet seen in many ancient Court-Rolls.

The other Court, which by common Right belonged to the Lords of Mannors, was that of the Copy-holders, called or rather included under the name of the Court-Baron; Court-Baron. which albeit it is called in the ordinary stile Curia Baronum, yet not so properly, as I conceive; and it may be by way of mistake for Baronis: Co. Instit. cap. 57. for if it were so properly united formerly to the Court of Free-men, as ( ab excellentiori) it always passed under that name, yet when that Court is omitted, and slipt out of the way, the Court of Copy holders that remaineth, improperly retaineth the name of that which is gone. This Court at the first was intended onely for the Lords benefit, and for the Tenants right, as subservient thereunto. I say, the Tenants right, not against their Lord; for they had no right against him: but against any other they had protection of Law, both for them­selves and their Estates. And, as I said before, by custom, or rather light of Religion, their persons and Estates were considerable, even by the Lords themselves. Ll. Edw. Which also caused a Law to be made, ut sic de suis hominibus agant, quatenus erga Deum reatum non incurrant, & Regem non offendant. Which Law could never be intended of the Free-holders; for it had been a vain redundancy to have made an especial Law for that, which was pro­vided for by the known fundamental Law of the Kingdom, against which a speedy remedy lay by the Kings Writ. And these men, how mean so­ever, had even in those days a kind of Property both in Lands and Goods: for the Laws, though by their antick Language darkned, yet plainly speak de terra sua & Catallis ejus. Selden. Spicil. 184. cap. 33. And if the ancient Germans were so generous to their Bond-men, surely much rather, after their coming into this Island; inasmuch as their service was more and more necessary in Agriculture, which could never be performed by the Natives, who were not in their own persons conquered, although their Land was.

CHAP. XXXIII. Of Townships and their Markets.

THE next Franchese is that of Towns: This was taken up as a Birth of War and Nurse of Peace; for their Ancestors liked not to dwell in crowds, ne pati quidem inter se junctas sedes: Tacitus. it being their trade or pastime to war upon Beasts, when they found no Enemies a­mongst them. This solitudinary custom could not be soon shaken off, and might well occasion multitudes of Towns in those times (though small ones doubtless) that Writers speak of; if true it be, that after the wasting times of the Danes and Normans, in the Conquerours time, were found in England, Forty five thousand Parishes, and Sixty two thousand Villages. [Page 50] Nor was Peace less beneficial to them, than they careful of it; for by con­tinuance of Peace, Husbandry, Manifactures, and Commerce, occasioned people to gather to places commodious for Habitation, in good Soil, nigh Navigable Rivers or Havens; and according to their scituation and trade, so they swelled in multitude or decayed. Some of whom growing more eminent than others, more care was had of their government and safety; for the latter by building of Walls and Castles, and for the former by set­ling a Magistracy peculiar to that place or Township; not as so many Decenners, but as one body consisting of many members. And thus by custom they grew to be Fraternities, or Corporations under one Magistrate or Head, whom they called Alderman; and held a Court of Justice (at the first holden twice a year) which was in nature of a Leet with a view of Frank-pledge, Ll. Canut. c. 44. Miror. cap. 5. Sec. 1. as may appear in the cases of Dorchester, Circester, and Don­caster, in Alfred's time: and herewith they had publick Markets, which served them for their better conveniencies.

This priviledge of Market was a liberty of publick sale and trade in Commodities that principally concern the Belly; Markets. but by common course became a pass for Commodities of every kind almost. Concerning this liberty, I shall desire leave to interpose this Parenthesis ensuing, before I proceed in the intended discourse.

In the first times, as every man by common right had property in his own Goods, so by the same right he had power to alien to any person, at any time, in any place, by gift, sale, exchange, or other ways; and that by such Alienation, but especially by sale, a Right was vested in the Buyer against all men, saving the Eigne-right, which was recompenced upon warranty, and recovery in value. And in those days common sense taught men to buy or sell, of or to the next Neighbour that would bargain with them: and for want of such occasion, to repair to the next Assembly, Meeting, or Concourse of people, for the sale of such Com­modities as their Neighbourhood would not take off their hands. And thus the greater Towns that had Walls or Castles, became the greatest Markets, and others less; and this made the Neighbourhood of those Towns to repair thither to buy, as others to sell. But time discovering a double inconveniency herein, viz. that by these less publick sales in smaller Villages, where little or no care of Right or Justice was had (and by which means the word Pagan became a word of reproach) ma­ny mens Goods by clandestine Contracts were lost, and no care had of their recovery; and (which was yet more prejudicial to the Publick) that the greater Towns appointed for the strength and defence of the Kingdom, became ill provided with supply of Victuals, either for the pre­sent or future; and what was had, for the most part was gotten at the se­cond hand, and higher rate than the Country-Villages had. The wise men, by publick Edict, laid a restraint of Markets in smaller Villages, and more private places; and thus the greater Towns having Markets for­merly, became more publick Markets, not by any new Right or Priviledge from the Crown; for it neither had such power nor could have (but upon usurpation) against the common Right of such Towns and places of publick defence. This Restraint, upon the reasons aforesaid, was made first in the Saxon-times, as may appear by their Laws, but more cleerly declared and confirmed afterwards by the Laws of the Normans, which never gave any new Right of Market-overt unto those places of pub­lick defence, but onely did inhibit the same in the smaller Villages and private places. In which respect, although the Kings of this Nation in [Page 51] future times took leave to abolish that Restraint which did lie upon some of those more private places, for certain reasons of State; and so these places became Markets-overt, which formerly were none: yet could they never take away that priviledge which Nature it self cast upon those greater Towns (being the very Limbs of the Kingdom) without wrong done to the common Right, and the publick Good; nor abridge them of that power, but that they might still use their liberty at times and places within their Precinct, as might best conduce with the benefit of the Inhabitants of those places, even as any particular Free man may go­vern his own Estate as him liketh best. And thus upon the whole mat­ter it is to be concluded, that the ancient Burroughs of this Kingdom properly do not hold their liberty of Market-overt by Prescription or Charter, but by common Right; and not as a Corporation made by Charter, but as they are a multitude of people anciently gathered toge­ther and united, upon whom the strength and wealth of the Kingdom doth or did formerly much more depend, than on any of the smaller Vil­lages and open Towns; even as every Free man possesseth and useth his proper Inheritance and Estate without particular priviledge derived from the Crown: Nor can the King take away the liberty of Market-overt from such places, more than he can take away the liberty of buying and selling from any Free man, to whom the Law alloweth a liberty of owner­ship. This I submit to the censure of the learned in the Laws, in regard of the different opinions concerning the same.

This liberty of Township thus made, and the Place and People Inhabi­tants thereof being of such consequence in the publick administration, had for their better support and safety liberty of Fortification, Ll. Edw. cap. 1. and power to charge one another with the maintenance of the Fortifications by an impo­sition called Burghbote; Ll. Aethelst. cap. 12. and held their Tenements under a Rent to their Lord or King called Burgage, Ll. Aethelst. cap. 13. Gloss. as they were a body aggregate.

CHAP. XXXIV. Of the Forests.

BEsides other Prerogatives of the Saxon Kings, they had also a Fran­chise for wild Beasts for the Chase, which we commonly call Forest, being a precinct of ground neither parcel of the County, nor the Dio­cess, nor of the Kingdom, but rather appendant thereunto. This sa­voured of the old German sport, but by custom turned from sport to earnest: For although in the first times the Saxons were so few, and the Country so spacious, that they might allow the Beasts their Farm as well as themselves their own; People nevertheless so multiplied, as of neces­sity they must intercommon either with Beasts or Fishes: the former whereof, however more cleanly, yet the latter had the surest footing, and was chosen as the least of two evils, rather than for any likelihood of good Neighbourhood. For as Nature taught Beasts to prey for them­selves, so men to defend their own; and this bred such a fewd between Beasts and men, as that Kings doubting to lose their Game, took in with the weaker, that the world might see the happiness of England, where Beasts enjoy their liberty as well as men. But this was, as it were, by compromise; for it had been very hard to have pleased the Free men, [Page 52] who had liberty of Game within their own ground by common Right, Ll. Canut. c. 77. and to preserve the Kings liberty of Forest co-incident therewith, had not the King employed on the one side the power of a Dane that looked somewhat like a Conquerour; and on the other side, that which looked as like to the bounty of a King, in allowing liberty of ownership to men in­habiting within the bounds of the Forest, which at the first was set apart onely for the Kings pleasure: and all his wits to make a Law somewhat short of a full freedom, and yet outreaching that of Bondage, which we since have commended to posterity under the Forest-Charter. And yet for all that, it proved a hard matter for Kings to hunt by Law; and the Law it self is a Yoke somewhat too heavy for a Commonwealth to bear in old age, if self-denying Majesty shall please to take it away.

CHAP. XXXV. Concerning Judges in Courts of Justice.

THus far of the several Tribes and numbers of this Commonwealth, which like so many Conduit-heads, derived the influence of Go­vernment through the whole body of this Island; and in every of which, Judiciary power acted it self in all Causes arising within the verge of that Precinct; some of which had more extraordinary trial before the King and his Council of Lords, according as the parties concerned were of greater degree, or the Cause of more publick concernment. Exam­ples hereof are the Cases between the Bishop of Winchester and Leoftin in Aetheldred's time, and between the two Bishops of Winchester and Durham in Edward's time: But custom made this Court stoop to smaller game in latter times, and to reach at the practice of the County-Court, by sending the Kings Writs to remove certain Causes from the cognizance of those rural Judicatories to their sublime determination. Glanvil. lib. 6. cap. 6, 7, 8. And thus became the Council of Lords as an Oracle to 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 sense, and had it confirmed to him by an Oath se judicium rectum in Regno facturum, Ll. Edw. c. 16. & justitiam per concilium procerum regni sui tenturum; so as, though he was the first in view, yet the Council of Lords was the first in nature, and the Cynosure to direct his tongue and actions.

From this Fountain issued also streams of Judicature into all parts by Judges itinerant under the Kings Commission, Miror. cap. 5. Sec. 2. & cap. 1. Sec. 3. to reform errors, punish de­faults in the ordinary rural Judicatories, 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, Appeal, Pre­sentment, 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 criminal, the most ancient way of pro­ceeding was by Appeal of the party complaining. But afterward in cases that concerned Damage, 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 the Publick; and upon this ground a way was found out to punish the offender by Indict­ment, Indictment. besides the satisfaction done to the party wronged. Lambert. Ll. Inae. 15. The procee­dings against such Delinquents were by attachment of the party, 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 Hallifax-Law; but in latter times he was imprisoned, Ll. Inae. Lam. fol. 7. or admitted to Bail if the offences were bai­lable: and if the party bailed made default, Ll. Alured. c. 6. or did not abide the Trial, his Bail suffered as Principal. Miror. c. 2. Sec. 24. If no Bail could be procured, the Delin­quent was imprisoned till he was legally acquitted; Ll Edw. cap. 4. but this imprisonment was only in nature of restraint. Miror. p. 255. Gloss. 335. If the Delinquent was found upon the Huy and Cry, and would not yield himself, Miror. cap. 5. Sec. 9. & 10. he was in repute a common Enemy, Ll. Edw. cap. 7. and (as a Wolf) any man might kill him; Ll. Canut. c. 45. as the Law was also the same in case of Vtlary. Miror. cap. 2. Sec. 22. At the time of tryal (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 arm, and that this was done Feloniously, or, (if the case required) Traiterously: and if I. S. deny the same, I will for the King prove the matter against him, as the King ought to do, that is to say, by Witnesses, and Twelve men. But if the complaint was at the suit of the party, Appeal. Miror. cap. 2. Sec. 15. then the Prosecutor sued him upon Appeal, in manner following: I. C. appealeth D. H. here present, for that E. Father, Bro­ther, Son, or Vncle (according as the case was) to I. C. being in the peace of God, and of our Soveraign Lord the King, at the dwelling house of E. at—&c. the said D. H. upon the—day of—in the—year of—with a Sword made a Wound of two inches long, and six inches deep, in the left pap 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 in his body, or as a Monk, Woman, or Clerk, behoveth to prove the same; that is, by Champion; for neither Monk, Woman, nor Clerk was by Law to justifie by Battle in their own person. The several causes of Appeal and Indictment may be found in the Law-books, to whom I refer the Reader, it not being within the compass of this Discourse to fall upon the particulars. I shall onely observe the difference between Indictments former and latter, and [Page 54] between them and Appeals, viz. that Appeals 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 same 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 Freemen concerning the fact.

Secondly, the difference between former Indictments from these in these days, 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 same, the later, of the fact.

A third way of bringing Controversies unto judgement, Miror. cap. 2. Sec. 23. concerned onely such matters as were of less consequence; and these were introdu­ced by way of Presentment, Presentment. in the name or behalf of the King, in na­ture of a positive Accusation of one for a Crime, first laid down gene­rally, and then asserted by a particular fact, in this manner: I say, for our Soveraign Lord the King, That H. here is perjured, and hath bro­ken saith against the King; because, whereas H. is or was Chancellour of the King, and was sworn that he would not sell Right, or any remedial 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 half a Mark. So as the difference between an Indictment and Presentment in those days was onely in the degree of the 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 Trespass done to a mans Person or his Goods; Miror. cap. 2. Sec. 24. and this was by way of Action, Action. and it was to obtain recompence for Damage sustain­ed. Now because the former were called Personal Trespasses, the Pro­cess was by attachment of the Person; who thereupon put in Bail, or else his Person was secured by imprisonment till Trial, and satisfaction made. But in the later that concerned the reality, Ll. Etheldr. cap. 20. Three Summons went forth in the Hundred-Court; Ll. Canu [...]. c. 10 Lindenbr. tit. 36. and if default were made, complaint thereof ensued in the County-Court, and thence issued forth a Distrin­gas; and if the Defendant still persisted in declining his appearance, the Distress was forfeited, and a Summons issued upon the Land. If then the Defendant would not appear, or upon appearance would not give Pledges to abide Judgement, his whole Land was seized for the benefit of the King, of the Lord of the Hundred, and of the Complainant, be­cause he had offended against all three. But if the party appeared in former times, he answered forthwith, and Judgement passed without delay, as hath been said; unless in urgent cases, where the matter was raw; and then it was adjourned, and Pledges given by the Defendant to the full value, Ll. Edgar. c. 7. after the custom of the Athenians; and if the De­fendant made Default at the day, his Pledges were forfeited. But in after-times, for better and more advised proceeding, the Defendant was admitted to his Essoines; yet with a Proviso, that no Essoine should be allowed for above Fifteen days; Miror. cap. 5. Sec. 1. and this was the direction of King Alfred.

In the answer of the Defendant, he either traversed the matter in fact, or confessed and justified, Miror cap. 3. Sect. 16. or confessed and submitted. The first put the matter to the judgement of the Freemen; the second to the judgement of the Judge; the third to the discretion of the Complainant, whereby the Defendant generally found mercy, and in case of Trespass, rendred less [Page 55] damage. I find no footsteps in those times of Dilatorypleas, or Demur­rer, or other delays, unless in case of infancy; for the Saxons knew no other age of ability to do or suffer, but the age above One and twenty years: and in Alfred's time a Judge suffered death for passing Sentence of death upon one under that age. Albeit the Canonists had in those days brought into custom other ages of ability in matters concerning Marri­age; Lindenb. gloss. Miror. cap. 5. Sect. 1. although it may well be thought that it requireth no less maturity to manage the affairs of a married life, than to discern the nature and dif­ference of manners, especially in case of crimes, which are contrary to the very light of nature.

CHAP. XXXVII. Of the several manners of extraordinary trial by Torture, Ordeale, Compurgators, and Battle.

EVidence of the matter in fact, upon trial of Causes in the Saxon Judicatory, sometimes consisted in the pregnant testimony of the Fact it self, Torture. and sometimes in the testimony of some Circumstances. The first was an unquestionable ground of conviction; the second was too weak to command the Verdict, although sometimes it perswaded it; and therefore those incompassionate times found out a trick of ex­torted confession, by torture of the party, following the principles of passion therein, rather than sober judgement; for circumstances are suf­ficient to irritate the hearts of those that are passionate; and where Jea­lousie is once entred, there's no place for sparing, be the matter never so untrue. Yet I do not find any Law amongst the Saxons to patronize this fashion of conviction; albeit it seemeth it was practised, for Alfred the King punished one of his Judges with death for passing Sentence upon an extorted confession by Torture before the Corner. Miror. cap. 5. Sec. 1. Cragius. And possi­bly it might be gained from the Lacedemonians, although little to the praise of their Greekish wisdom in that particular: Seeing that in all rea­son it must be supposed, that Fear and Grief will enforce Flattery upon the Tormentor, as well as Self-love draw forth Flattery to the Benefa­ctor.

A second sort of Evidence was that of Ordeale, Ordeale. being also grounded upon a pre-conceit or suspicion: the manner hereof was divers. The thing seemeth to be the birth of the Brain of some Church-man, who had read of the cursed Water. The first mention that I find thereof was at the Council of Mentz, An. 813. An. 895. Ll. Aethelst. Can. 23. An. 928. and afterwards in the Council of Triers; but not a footstep thereof in this Kingdom till by Aethelstan it was advanced in­to the degree of a Law; after which time it continued in use well nigh Three hundred years. A strange monument of God's idulgency to an ignorant Age thus turning extraordinary to ordinary, for the clearing of innocency; and (which is no less wonderful) allowing in those times unto men under nature such a power over themselves, as to adventure against nature. Doubtless that man or woman was of a daring spirit that first tried the trick, if he had not a miraculous faith in that pro­mise, Cum ambulaveris per ignem, &c. and it shewed metal in them that followed the example. But the next age grew dull, Isa. 43. 2. and men being [Page 56] weary of such bane-touches, the Clergy that cried it up, their successours cried it down, and so devoured their own birth without any difficulty, o­ther than a bare injunction of a King, Spicil. Selden. that had power to command onely such as would obey.

But where fame was yet more slight, Compurga­tors. and springing rather from want of charity and misapprehension, than promising circumstances, men were wont to be contented with a voier Dire, or the Oath of the party suspected, and the concurrent testimony of other men: The first attesting his own innocency, the other contesting their Consciences of the truth of the former testimony; and therefore were, and still are called Com­purgators. Their number was more or less, and of greater or less value, according as the offence or the party suspected was of greater or less con­cernment. This manner of trial was of ancient use, Ll. Edm. c. 16. and both it and that Ordeale under the directory of the Clergie; yet this was the an­cienter by Three hundred years, An. 647. and first brought into this Nation by the Council at Berghamsted under Bertwald Archibishop of Canterbury. Ll Canut. cap. 5. And it was performed sometimes more solemnly by solemn receiving of the Eucharist, especially if the person suspected was of the sacred Fun­ction.

One manner of trial yet remains, Battle. which was used both in trial of matters of Crime and Title; and it is the trial by Battle, which was in criminal matters with sharp Weapons; but in titulary matters with blunt Weapons. No Defendant could refuse Battle offered, but such as were too excellent, as the King; or too sacred, as the Clergie; or too weak, as Women, Maimed persons, and Children; or too inscient, as Ideots and Lunaticks; or too mean, as Villains. And as these were not necessitated to answer in Battle, so was no Freeman compelled to answer them by Bat­tle. Miror. cap. 2. Sect. 13. This way was an old way, as may appear by the conclusion of Ap­peals, and seemeth more satisfactory than that of Ordeale; because this rested upon the Consciences both of Appellant and Defendant; whereas Ordeale rested onely upon the single Conscience of the Defendant, which oftentimes was rather hardy than innocent. And the continuance of this trial in title, even at this day, shews that men can away with this, and that there is not evil sufficient in it to eradicate this weed, although it be kept under ground; and experience shews, that Right and Victory always do not concur.

CHAP. XXXVIII. Of the ordinary manner of Trial amongst the Saxons by In­quest.

THe last and most ordinary way of trial was by Witnesses (upon traverse of the matter in Fact) before the Jurors, Inquest. and their votes thereupon: this made the Verdict, and it determined the matter in fact. In former time questionless it was a confused manner of trial, by Votes of the whole multitude; which made the Verdict hard to be discerned: But time taught them better advice, to bring the Voters to a certain number, according to the Grecian way, who determined controversies by the suffrages of Four and thirty, Emmius. or the Major part of them. But [Page 57] how the number came to be reduced to Twelve, I cannot conjecture, un­less in imitation of that rule of Compurgators, that ordinarily exceeded not that number. The first Law that defined this number, was that of Aetheldred, about three hundred years before the Conquest. In singulis Centuriis, An. 675. Ll. Sax. Lamb. &c. In English thus: In every Century or Hundred let there be a Court; and let Twelve ancient Freemen, together with the Lord of the Hundred, be sworn that they will not condemn the Innocent, nor acquit the Guilty. And this was so strictly eyed, Miror. cap. 5. Sec. 1. that Alfred put one of his Judges to death for passing Sentence upon a Verdict corruptly obtained, upon the votes of the Jurors, whereof Three of the Twelve were in the Ne­gative. And the same King put another of his Judges to death, for pas­sing sentence of death upon an Ignoramus returned by the Jury. And a third, for condemning a man upon an Inquest taken ex officio, whenas the Delinquent had not put himself upon their trial.

But the Saxons were more careful of the credit and life of man, Two Juries. for no mans life or credit rested altogether upon the cast of Twelve opini­ons: but first Twelve men enquired of the fame and ground thereof; which if liked, rendred the party under the spot of delinquency, and meet to be looked upon as under the suspition of the Law, who formerly was but under the suspition of some particular man. And then was a second enquiry of the fact, if the party traversed the vote of Fame. In both which trials the Verdict grounded it self upon those allegata and probata which were before them. The first of these enquiries was be­fore the Coroner, who, even in these old days, had the view of Bloodshed. The second was had before the Judge of life and death: neither of which could legally indamage the party without the other, unless the Judge meaned to answer it with the peril of his own person and Estate; as it befel in Alfred's time, when a Judge suffered death for passing Sentence upon the Coroners onely Record; unto which a Replication is allowed, Miror. cap. 5. Sec. 1. as the Book saith. And another Judge had the same measure for condem­ning one without Appeal or Indictment foregoing. Where, by the way, I might note another difference between Appeals and Indictments in this; Miror. cap. 2. Sec. 11. that Appeals were and are the more speedy Trials than Indictments, inas­much as the former were but one act, the latter two.

And yet time and experience refined this way of trial into a more excellent condition: Medietas Linguae. For the bloody times of the Saxons first age pas­sing over, and peace arising by degrees, they, together with the Bri­tons, began to intercommon, and about the Marches became a mixt people under a mixture of Government and Laws, as hath been already noted. Amongst which one concerned their way of trial of matters in fact by a Jury mixt both of Britons and Saxons, which was setled by a Law made by Aetheldred. Viri sint, &c. In English thus: Let there be Twelve men of understanding in the Law, six of them English, and six Welch, Ll. Aetheldred cap. 3. Lamb. and let them deal Justice both to English and Welch. The equity of this Law in future ages spread it self into all Trials of For­reigners in every place throughout this Island. Unto such as stum­ble at this conceit, because they are said to be aetate superiores, and ju­re consulti, I shall onely note thus much; That it is not to be doubt­ed, but the work of Jurors required chief men both for experience and knowledge in the customs of those times, to enable them to judge of the matter in fact; and upon whose judgement the Life and Death of the party rested principally: And as probable it is, that those Ju­rors, as they were then chief men, so they sate in the most eminent [Page 58] place of the Assembly or Court, and were co assessors with the Bishop and Sheriff, who did serve but onely to advise the rest; and they, or one of them to publish the Sentence which the Law predetermined. And this chief place the Jurors might have possessed at this day, as they do in Sweden, had the chief men holden the service still worthy of their attendance.

But great men grew too great in their own esteem for the service of their Country, Peers. betaking themselves to serve themselves; and matters of highest employment were left to those of the meaner condition; who being in their own persons of less admiration, were thought unmeet to sit in such eminent places, and so from the Bench descended to the Floor, as at this day. This disidiousness of the greater sort made one step fur­ther to the full perfection of that manner of Trial both of the Per­sons and Estates of the English, which hath been the envy of other Nations, and is called the trial per Pares, or by Peers. For the pride of the Danes (now growing into one people with the Saxons) not en­during such fellowship with the mean Saxon-freemen in this publick service; and the wise Saxon King espying the danger in betrusting the Lives and Estates of the poorest sort unto the dictate of these super­bient humours; and on the contrary in prostituting the Nobler blood upon the vote of the inferiour rank of men, provided a third way, and by agreement between him and Gunthurne the Dane, setled the Law of Peers. Si minister regius, Ll. Alured. Concil. Brit. fol. 492. &c. If a Lord or a Baron be accused of Homi­cide, he shall be acquitted by Twelve Lords: but if of inferiour rank, he shall be acquitted by Eleven of his Equals and one Lord. Thus Gods pro­vidence disposed of the pride of men, to be an instrument of its own restraint: For the great men, ere they were aware, hereby lost one of the fairest Flowers of their Garland, viz. the Judicature, or rather the mastership of the Life or Death of the meaner sort; and thereby a fair opportunity of containing them for ever under their awe. And no less remarkable was the benefit that redounded to this Nation hereby; for had the great men holden this power, as once they had it, it might soon have endangered the liberty of the Freemen, and thereby been de­structive to the Fundamental Constitution of the Government of this Realm, which consisteth in the just and equal participation of these Pri­viledges, wherein all are equally concerned. This was the trial wherein the people of this Nation were made happy above all other people, and whereby the Freemen, as they had the Legislative power, so likewise had the Juridical; and thereby, next under God, an absolute dominion over themselves and their Estates. For though this course of trial was first applied to matters of Crime, yet it soon also seized upon the Common­pleas, which for the most part was the work of main import in the Hun­dred Court; and suitable hereunto are the prescriptions which are extant in the Law-books of Cognizance of Pleas, and Writs of Assize, &c. from the times of the Saxons, 26. ass. pl. 24. as in that case of the Abbot of Bury amongst o­thers doth appear.

CHAP. XXXIX. Of passing of Judgement and Execution.

AFter Verdict, Judgement passed according to the letter of the Law, or known Custom; in criminal matters, according to the greatness of the offence, either for death or loss of Member. But if the circum­stances favoured the Delinquent, he was admitted to redemption of Life or Member, by Fine also setled by letter of the Law, and not left to the Judges discretion. If the Crime reached onely to shameful penance, Ll. Inae. such as Pillory or Whipping, Ll. Canut. (the last whereof was inflicted onely upon Bond­men) then might that Penance be reduced to a Ransom (according to the grain of the offence) assessed in the presence of the Judge by the Free­men, and entred upon the Roll, and the Estreat of each Ransom several­ly and apart sent to the Sheriff. This Ransom was paid usually unto the King and Lord, and the party indamaged, or his friends, if the case so required; according to the old German rule, Ll. Inae. cap. 22. Pars mulctae Regi vel civi­tati, pars ipsi qui vindicatur, vel propinquis ejus. Tacitus. This course opened indeed a way for Mercy; but, through corruption, a Floud-gate to Wick­edness in the conclusion. Of Imprisonment there was little use in the eldest times; afterwards it was more used, not onely to secure the per­son to come to trial of Law for miscarriages past, but sometimes to se­cure men against committing of future mischief, especially if it more concerned the publick. I find but little or no use thereof barely as a punishment, nor would their Ancestors so punish their Bondmen: Vin­culis coercere rarum est. In case of Debt or Damage, the recovery there­of was in nature of elegit; for the party wronged either had the offen­ders goods to him delivered, or the value in money upon sale of the goods made by the Sheriff; and if that satisfied not, Ll. Edw. then the moity of the Lands was extended, and so by moities so far as was possible, salvo contenemento; and when all was gone, the Defendants Arms (which were accounted as the Nether-milstone, or stock of maintenance) were last of all seized; Ll. Alured. c. 1. and then the party was accounted undone, and cast upon the charity of his friends for his sustenance: but the person of the man was never imprisoned as a pledge for the debt, no not in the Kings case. Alfred imprisoned one of his Judges for imprisoning a man in that case. One punishment of death they had in cases of crime, Miror. cap. 5. Sec. 1. and that was by hanging or strangling; and where the crime was not so great, sometimes ensued loss of member or mutilation, and in many such cases Excommuni­cation, pronounced indeed by the Clergy, but determined by the Law; which in the first conception was framed in the womb of the Legislative power in Parliament, Concil. Brit. 105, 251, 365, 420. as may appear in many Laws there made; nor was there in those times any question made of the cognizance thereof, so long as the Clergy and Laity had charity enough to joyn in all publick Coun­cils.

CHAP. XL. Of the Penal Laws amongst the Saxons.

PAssing the Courts and manner of proceedings till Sentence, we are now come to the particular Laws that directed the Sentence; and first of those that concerned criminal offences. During the Saxons time the Commonwealth was in its minority, the Government tender, the Laws green, and subject to bend according to the blast of time and occa­sion, and according to the different dispositions of Governours, Ages, and People. For though the Saxons were in name our first matter; yet not they onely, but they having once made the breach open, and entred this I­sland, it became a common receptacle of those Eastern people, the Angles, Danes, Almains, and Goths, as their several Laws left with us in power do not obscurely inform us; and amongst all the rest, the Goths were not the least concerned herein; for the Saxon King determining what people shall be hol­den Denizons in this Kingdom, saith, That the Goths ought to be recei­ved and protected in this Kingdom, as sworn Brethren, Kinsmen, and proper Citizens of this Commonwealth. Nor can any Nation upon earth shew so much of the ancient Gothique Law as this Island hath. Never­theless in this mixture of people of several Nations, there being a sui­table mixture of Laws; as the power of any one of these peoples chan­ged, so likewise did their Laws change in power; and long it was ere a right temper of one uniform Law could be setled: yet in the in­terim, these short remembrances left unconsumed by time I have subjoy­ned, that it may appear their motions were excellent, though somewhat inconstant in their practice.

Those times were dark, and yet so far as any light appeared, the people were to be honoured for their resolution in the defence there­of. For there was few of the Commandments of the two Tables which they did not assert by Laws by them made, the third and tenth excepted; which latter commands the inward man onely, and whereof God hath the sole cognizance.

True it is that the first Commandment containeth much of the same nature; The first Command­ment. Witchery. yet somewhat is visible, and that they bound: For whereas in those times the Devil had such power, as he did prevail with some (and those it may be not a few) to renounce God, and deliver them­selves wholly to his own will; they punished this crime with banish­ment, as judging him unworthy their society that would communicate with Devils. Yet if the Delinquent had done any mischief whereby death ensued, Ll. Sax. cap. 6. the parties punishment was death; yet might all be dis­charged by Ransome, and good security for good behaviour for time to come.

For their worship of God, The second Command­ment. they were no less zealous in maintenance of the manner; as their Forefathers liked not the use of Images or Pi­ctures for adoration, neither did they: and though the Clergy in other matters led them much, yet in this they were alone for a long time: for though the Roman Church had the use of Images above Three hun­dred years before Austin's coming, yet could not that custom fasten up­on the Saxons for the space of above One hundred years after Austin's coming; notwithstanding the endeavours of Charlemain, and Pope [Page 61] Constantine (by his bastard-decree begotten upon the dream of the Bishop of Worcester) that saw the Virgin Mary's picture brought him in his sleep by her self, and with a command from her, That it should be set up in the Church and worshipped: I say, Concil. Brit. 218. it could not fasten any constant practice of Idol-worship, nor ever wrest a Law from the Wittagenmote to countenance the same; but rather on the contrary, they still preserved the memorial of the second Commandment in the Decalogue, even then when as the Ro­manists had expunged the same out of the number: Concil. Brit. 364. and they enforced the same by a Law of their own making, so far as their Clergie, Ll. Canut. c. 5. or Reve­rence they bear to Rome, would allow.

It hath been formerly observed, that the Saxons took no note of the vice of prophane swearing and cursing; which crime (if it were in use, as it can­not be otherwise conceited but it was) as the times then were, The third Command­ment. must lie upon the Clergie-mens account for their neglect of teaching the point; or upon the general ignorance of those times, which understood not the Commandment nor the Scripture: For we find no Canon against it, nor scarce any Doctrine concerning it, but onely in case of false swearing, till Anselm's time. True it is, that Chrysostom seemeth zealous against all swearing; but that was his personal goodness, which for ought appeareth died with him. And Anselm contending against swearing by the Creatures, and idle swearing, renders his grounds in such manner, Cent. 1. cap. 4. de leg. as it may be well conceived that he understood not the main.

I am the rather induced to conceive charitably of those times, The fourth Command­ment. in re­gard of their exceeding zeal for the honour of the Lords day; which sheweth, that so far as their knowledge would maintain them, they had zeal to make it into action. They began this day doubtless as other days, according to the custom of their Forefathers in Germany, Tacitus. Nox ducere diem videtur. And because they would not allow their secular affairs to trench too nigh that days devotion, they made the Lords day to begin on Satur­day at three of the clock in the afternoon, and to continue till Munday-morning. No pastime, no not their beloved sport of Hunting, Concil. Brit. 445, 446. was al­lowed during all that while; nor no works were to be done, but such as concerned the Worship of God: and those Laws they bound with penalty of Fine, if the Delinquent were a Free-man; if he were a bond-servant, he was to be whipped. Nor were these the Laws of one King or Age onely, Ibid. 268, 377, 404, 518, 546. but of the whole current of the Saxon Government; and may (although dark times they were) yet put us in these days of light to the blush, to enter into comparison with them for their Devotion.

In their Conversation with men, The fifth Command­ment. the Saxons seemed yet more strict: and being a people of a publick spirit, they preferred the good of their Country above all; accounting Treachery against it, or neglect thereof in time of danger, to be a Crime of the greatest concernment, and to be pu­nished in the highest degree, Proditores, & transfugas arboribus suspendunt. Tacitus. Treason. Other Treason than this, no not against Kings, did they then acknowledge any; and therefore the form of the Indictment for contriving the death of their King, Miror cap. 2. Sec. 11. concluded onely Felonicè, as may appear in that form of an In­dictment for an offence of that nature intended and plotted against Edmond the Saxon King: Whenas for the plotting against Alliance, though of com­mon and inferiour nature, the Indictment concluded Felonicè & Proditoriè. And wereas the penalty, Miror cap. 2. Sec. 13. in case of Treachery against the Country, was death, and forfeiture of the whole Estate, both real and personal: In Treachery a­gainst the King, Ll. Edw. c. 38. Concil. Aen­ham. 26. it was onely loss of life, and of the personal Estate. And therefore it may seem that Majesty had not yet arrived at its full [Page 62] growth; or else that the greatest measure thereof rested in the body still.

If in any thing the Saxons were indulgent, The Sixth Command­ment. it was in matters of Blood; for they were a warlike people, and looked upon it as under the regiment of valour; and therefore it was punished only with fine, according to the old rule, Man-slaugh­ter. Luitur homicidium certo armentorum & pecorum numero. So as even in Germany they had learned the trick to set a price upon that crime; and this they afterward called Manbotta wera wirgida wita, and lashlight: and, which was worse, they countenanced that which in after-ages was called deadly feud; and so under colour of punishing Murder with re­venge, Sax. Lamb. sol. 17, 18. they added blood to blood. But as times grew more tame, and inclining to civility or Religion, the cry of Blood was more hideous; and this urged on the Law of Appeals, Miror. cap. 5. Sec. 1. and so private revenge became under the power of the Law, Li. Alured. Sax. praesace Lamb. which punished death with death, savouring of such a King as Alfred was, who first taught the Scriptures to speak in the dialect of our own Laws; like the Rubrick amongst the Canons, bringing therewith both strength and beauty: yet they had degrees of blood-shed, and made a difference in the punishment; for some sprung from sudden passion, but other was forethought and purposed; which last they called Abere Murther, Glossar. p. 4. or Murther by foreplot or treachery; and this was made nullo pretio emendabile; Ll. Canut. cap. 93. and yet towards the times of the Danes, devoti­on grew of so high a dye, that a Sanctuary could represent any bloodshed more allowable, if not acceptable, under the golden colour of recom­pence made to the King, the Lord of the party slain, and the parties friends, for the loss of a Subject, a Tenant, and a Friend according to that of their forefathers, recepitque satisfactionem universa domus. Tacitus. It would be too tedious to recite all the particular Laws, with their changes, and therefore they shall be lest to the view in the several Laws of Alfred, Ed­mond, Canutus, and Edward, the Saxon Kings. Yet one custom first begun by the Danes, Englishire. I cannot omit: That if a man were found slain, whose pa­rents or friends were unknown, Stams. lib. 1. cap. 10. by common intendment he was presu­med to be a Dane; Miror. cap. 1. Sec. 13. and then if the delinquent were not taken, nor fled to Sactuary, nor known where he is, the whole Hundred was amerced for the escape; Bracton lib. 3. tract. 1. ca. 15. but if the party slain were known to be of English Parents, it was otherwise. Breach of peace. Batteries. Maimes. Imprison­ments. This custom lasted long after the Normans time, the Dane being only changed into the Norman, and was called Englishire. Batteries, Maimes, Imprisonments, and other breaches of peace, were pu­nished by Fine, which they called Fightwitt, Grithbrece, or Frithbreck; and the Delinquent ordinarily put in sureties for the peace for future time. The fine was increased by the number of Delinquents joyning in the fact: for if seven joyned, Alured. praef. Lam. 17. it was a Riot, and the fine was then called Flothbote. If the number were five times so many, viz. thirty and five, then it was a Rebellion or War. Secondly, the fine was increased by the time or sea­son of the fact, as in Lent, or while the Army was in the field; because, in the first case, the holy time was prophaned; in the second, the Countrey was more endangered, when the strength was abroad, and the Army might be discouraged at the news of the disturbance at home. Ll. Edw. c. 31. And therefore the Saxons punished this with death, Ll. Sax. ca. 36. or fine suitable. Thirdly, the fine was the greater in case of the excellency of the place, Ll. Inae. cap. 6. where it was holy ground, The Seventh Command­ment. or in the presence of great persons, such as the King or Bishop.

Adultery among the old Germans was holden a crime of a high nature; Baron. Annal. 745. num. 5. the penalty of the woman that committed that crime was death: Concil. Brit. 558. I find not what became of the man. In latter times of the Saxons it grew less [Page 63] penal, and more common. Ll. Canut. 50. reg. 22. By Alfreds Law it was finable, and the fine called Legierwit. By Canutus the man was fined or banished, Incest. the woman to lose her nose, ears, and her portion. Ll. Sax. 48. reg. 19. Incest was more penal to the man than Adultery, and yet it touched not his life. The eighth Command­ment.

Robbery amongst the Lacedemonians was accounted but a trick of youth, the Athenians thoughts were more severe. The Germans likewise differed in their censures concerning it; the Saxons punished it with death, Lind. Ll. Aug. & Sax. but the Angles with fine only; yet Ina the King made it mortal, and Canutus followed him therein; Ll. Sax. 4. reg. 3. Miror. 26. and Edward the Confessor limited that punish­ment to thefts of twelve pence in value, or above. Burning of Woods. Burning of woods was finable by Ina's Law; but Burglary was Felony. Burglary. In King Edmunds time only the Danes made it finable; Ll. Ed. cap. 6. possibly being guilty in their own Con­sciences of their own propensity to rapine and plunderings. Ll. Canut. p. 59. This privi­ledge of the dwelling-house was anciently called Hamsoca, or Hamsoken, or Hamsokne. Trespasses. Trespasses committed upon ground were all comprehended under the general name of Ederbrece, or hedge-breaking; and the penalty was not only the damage to the party, but also fine to the King upon Action, which in these days passeth under the name of Quare clausum fre­git, according to the words of the Writ. Ll. Sax. ca. 36. The damages were more or less, according to the time or season when it was done: for it when the Army was abroad, the damages were doubled; and in like manner, if done in Lent time. If the trespass was done by a Beast, Ll. Inae. 5. 6. the owner must pay the damages; Ibid. c. 40. but if it were occasioned through the complainants default (as through his gap) no damages were paid. The constant fine to the King in all such trespasses, Ll. Sax. c. 36. was by Alfreds Law set at five shillings. Other Actions also were then used, as touching damage done to Goods, and Actions upon the case: for in Alfreds time the Plaintiff recovered not only damages for trespasses done to Possessions and Goods, but also costs for injuries in point of scandal and defamation, Miror. p. 301. in case the complainant specially declareth that he is thereby disabled, or indamaged in his prefer­ment, and maketh proof of the same; suitable unto the forms of our pleadings at this day, which conclude with per quod, &c. or & deterio­ratus est, &c.

The Saxons were utter enemies to Perjury; The Ninth Command­ment. they punished it with eter­nal discredit of testimony; and sometimes with banishment, or with grievous fines to the King, and mulcts to the Judge. For that difference I find observed in those days between fines and mulcts, Ll. Aethelst. c. 12. albeit the more an­cient times used them for one and the same; Ll. Canut. c. 5. Spec. Sax. l. 3. art. 53. for so the Historian pars mulctae Regi. In all these matters where any interest was vested in the Crown, Ll. Edw. c. 18. the King had the prerogative of pardon; yet always the recom­pence to the party was saved; besides the security of the good behaviour for time to come, as the case required.

CHAP. XLI. Of the Laws of Property, of Lands and Goods, and their manner of Conveyance.

THus passing over some tops of Saxon penal-Laws, Miror. cap. 5. Sec. 1. besides the ge­neral rule or Law of eye for eye, tooth for tooth, &c. it now remains as lightly to glance at a few generals concerning the setling and property of possessions in point of Title; concerning which, although it be true that the Conquerors of this part of the Isle were a body aggregate of ma­ny Nations or peoples, and so divers customs must necessarily settle by common intendment in several places, according as they chose their habitation: yet the general custom of the Germans, as touching descent of inheritance, was to the eldest Son. Inheritance. For Tacitus speaking of the German Cavalry, saith, That the Horse of the party dead went not to the el­dest Son, ut caetera, but to the most valiant man amongst them of that Linage; which words ut caetera do plainly intimate, that other matters of profit passed to the eldest Son in point of descent. Nor can I conceive how men should be induced to conceit, that the custom of Gavelkind was the anci­ent general custom of the Germans. It is true, the words of the same Historian have misled some; the words are, Haeredes tamen & successores cuique liberi; these taken collectively, I grant may import somewhat tending that way; but they may as properly be taken disjunctively, that the Children inherit by course; and if none such were, then the Brothers; if they failed, then uncles. And it is not only evident, that in the publick Succession to the Crown they had an eye this way, but in the descent of private and particular estates, as by many instances out of those old Hi­stories may appear; and had any other custom been general, Alfreds rule by Moses Law had never succeeded; nor could that other custom hold out against the constant desire of the Saxons to perpetuate their Families in greatness and honour: all which, besides the express Laws set forth in the Codes, are in my conceit sufficient to induce an Historical Faith, That the general course of descent was to the eldest Sons, and not to all joyntly. Ne­vertheless out of this Estate of Inheritance, divers particular estates were created, as well by common custom, as by the especial act of the owner of such an estate. Such of them as were wrought by custom, was occa­sioned from Marriage, whereby if the man was setled of such estate as formerly hath been recited, and died, his Wife surviving, by ancient custom she had her Dower, Dower. or third part of such estate of inheritance. This custom, though ancient, yet was not originally from the Germans, but from the Latines, who used to give Dower with the man, and receive Portion with the woman. Plut. vit. Solon. Apotheg. Lacon. But the Germans learned from the Greeks o­therwise; for the Laws both of Solon and Lycurgus forbad the latter, lest Marriages should be made for reward, and not grounded upon affection; which, as they conceived, would be a means to maintain the strength of mankind in generation. And therefore Tacitus noteth this by way of Antithesis, Dotem non uxor marito, sed uxori maritus offert. The Dower that was given in the first times was Goods; and these were utensils for War. And the Wife many times returned to the man tokens of her love, in the same kind, and not as gages of future maintenance, unless we shall [Page 65] account War their proper calling from whence their livelihood issued. Succeeding times growing more calm, changed the custom of fighting into trading, and taught them to prefer the stock gotten by commerce, before that of War; and so the Dower was changed. This course conti­nued all the Saxons time, for ought I can find; for not much above three­score years before the Conquest, Ll Sax. Lamb. Edm. fol. 76. it was by a publick Law confirmed, that the Bridegroom before Marriage should set forth that portion of Goods that should be his Wives; Ll. Sax. 50. Reg. 22. and these were ever afterward holden her own proper Goods. But if no such provision was made before Mar­riage, then the Law or Custom gave the Wife half her Husbands Goods, if she outlived him; and if there were Children, then the whole estate in Goods, to provide for herself and them, until she took a second Husband: but if the Husband suffered death as a Malefactor, the Wife was to have but one third part. Ll. Sax. Lamb. fol. 14. I find no footsteps of Dower in Lands until the Normans time; Ll. Inae. ca. 51. who were also as well owners of the Wives personal estate, as of their persons, and before which time the Saxon Wives in divers regards were more absolute and independent; I say not more hap­py, because they were never one with their Husbands; nor were they ever under the Law of free-pledge, as Wives; nor was the Husband his Wives pledge as he was her Husband, although as a Master he was free pledge for his servants: Ll. Ed. Lamb. cap. 7. for the Law was, that in case the Husband carried his Wife away into another Lordship, as he must give pledges that his Wife shall have no wrong, so she must give pledge by her friends that she shall do no wrong; and she passed therefore as an appurtenant to her Hus­band, rather than one in unity with him; and her estate or portion was rather appurtenant to her than him: for if she failed in her good carriage to her Husband, she was to make amends out of her own Estate to her Husband; and if her estate sufficed not, then her pledges were to satisfie her Husband. Ll. Sax. 50. Reg. 22. Nevertheless what failed in the relation of the Woman to the Man, was supplied in the relation of the Man to the Woman; for, be­sides the respect the Men bare to the Women, as their Wives, they honou­red them as German Women, that admired valour in all, Idolized it in their Husbands, and shared in it themselves; and upon occasion merited thereby not onely to be companions in honour, but triumphers above Men, yea their Commanders and Governours. Nor was this the original trick of the rude and uncompt Germans, or barbarous Britans, but of the wise Greeks, and received (as may be supposed) from the Lacedemoni­ans, upon as good ground as the Wife of Leonidas the Lacedemonian King rendred; who being asked why the Lacedemonian women ruled their Husbands: It is true, said she, for we only know how to obey our Husbands. A second particular estate, which the Law derived out of the inheritance, was advancement to the Husband; for the Saxons were not so stupid as to refuse favour proffered: and therefore they made a Law of Counter-tenure to that of Dower, which we commonly call tenure by the curtesie of England; Curtesie of England. which was but a perquisite of the Wives estate given to the Husband, in case he over-lived his Wife, and had issue by her born alive. The name was probably given by the Normans, who as it seemeth had no such custom; and therefore they gave it the name from the English (albeit since that time Scotland hath also allowed it a­mongst them) Ll. Alm. tit. 92. Lindenbr. cod. who might probably bring it into this Kingdom or Countrey amongst the mingled people: for this Custom or Law is found amongst the ancient Almain Laws; differing onely from the Law this day in the evidence of the title, which now ariseth [Page 66] upon the birth of the Child heard to cry; whenas in those days the title vested not unless the Child opened his eyes, ut possit videre culmen domus, & quatuor parietes, which toucheth not onely the opening of the eye, but al­so the rowling of it about.

Estates that were derived out of the Estate of an Inheritance by the act of the party, either were such as concerned the whole Inheritance, or part thereof. That which concerned the whole Inheritance, was nothing but a parcelling of it out according to the will of the giver; and this was afterwards called Estate Tail; Estate tail. which passed also amongst some places by way of custom, Ll. Ang. tit. 6. Lindenbr. as amongst the Angles it was a Law that the Inheri­tance should pass unto the Issue-males on the Fathers side until the fifth generation, before any title could accrue to the Issue female; and then ac­cording to their Proverb, 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 custom, Ll. Sax. tit. 7. ibid. which carried the Inheritance unto the Daughters, Concil. Brit. 333. upon the failing of the Issue Male, as in the example of Cenedritha Daughter to Cenulphus, amongst multitudes of others may appear. 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: Ll. Alured. Sax. c. 7. nor could any one that came in by vertue of such Writing ever alien the Land to cross the cur­rent of the original Conveyance. The entailing of Estates therefore was very ancient, Plo. com. 251. although by corrupt custom it was deluded, as the Lord Dier in his argument of the L. Berklies Case observeth.

Another custom of Inheritance was catcht I know not how, it's cal­led Burrough English, Borough-English. and by the name may seem to be brought in by some Cynical odd Angle that meant to cross the World, and yet in a way not contrary to all reason: for where nature affords least help, the wisdom of men hath used to be most careful of supply; and thus the youngest became preferred before the elder in the course of descent of Inheritance, according to this custom. There is no further monu­ment of the antiquity hereof that I have met with, than the name it self, which importeth that it sprang up whiles as yet the names of An­gles and Saxons held in common cognizance; and might arise first from the grant of the Lords to their Tenants, and so by continuance be­come usual. And by this means also might arise the custom of Copy-holds 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.

Another custom of descent remaineth, and that is to the Children indifferently, Gavel-kind. and it is called Gavel-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 custom, than by com­mon Law; otherwise no need had been of an especial name. In the Original it seems it equally concerned all, both Sons and Daughters, as partners; and for want of such, the Brothers and Sisters. It seemeth to be first the Law of the Goths or Jutes; Stephan. Dan. Bureus. Suel. for it remaineth in use in these parts of the Eastern Countries. But in latter times this estate was also tailed, or cut out sometimes to the Sons and Daughters severally; that is, the Sons or Brothers to have two parts, and the Daughters or Sisters one part: othertimes to all the Sons, and for want of such, to all the Daughters. And thus these courses of estates passed over Seas to the Southern part of this Island, where that people most setled, in a double [Page 67] stream; the first from the Athenians, that loved the stateliness of their Families; Emmius Grec. the other from the Lacedemonians, who desired rather the conti­nuance of their Families than their greatness.

The manner of conveying of Estates between party and party, Conveyances in writing. was either by act of the party executed in his life-time, or after his death. Such as were executed in the life-time 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, both for form and language. Ll. Sax. cap. 31. And Alfred enforced 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 the Witnesses. The nature of the Con­veyances in these ancient times may appear by a Deed of one of the Kings of this Island about 400 years before the Conquest, whereby he granted Four Plough-lands in the Isle of Thanet, unto an Abbess; where­in, instead of that which we now call the habendum, Habendum. Vse. Warranty. the words are con­tulimus possidendum, &c. and after that followeth the uses of the Deed, tuo usui, &c. and then concludes with a 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 appear by the Law of the sale of Goods, which in those times was, that if the sale of Goods warranted did not hold, Ll. Inae. c. 74. the loss should light up­on the sellers. Ll. Sax. c. 24. The Deeds were usually subscribed with the name of him that made the Conveyance, Ll Edw. c. 24. Signed. or passed the Estate; and if he could not write his name (as it befel often) then the Deed was under-signed with his mark: For Withered King of Kent used the sign of the Cross in sub­scribing his Grants, pro ignorantia literarum. They used also in those days to seal their Deeds; Sealed. Concil. Brit. p. 198. for so much the conclusion of King Ina's Charter to the Abbey of Glastenbury importeth, in words to this effect in English; I Ina the King, do confirm this Grant and Liberty, by subscription of my own hand, and under the seal of the holy Cross. True it is, Ingulphus tells us that Seals to Deeds were of Norman original; I believe his intent is concer­ning Seals of Wax annexed or affixed unto Deeds. Lastly, in those days also they used to attest their Deeds, Witnesses. by subscribing the names of such as were present; who being of greater or meaner rank, rendred the credit of the Deed accordingly more or less valuable: and upon this ground did the acknowledging or proving of Deeds before the King, Acknow­ledgment. Bishop, County, or Hundred, first arise.

That was the Roman fashion; but the more ancient German way of Conveyance was by Livery and Seisin, Livery and Seisin. Cragius. as most suitable to their ignorance, who had Learning in as slight account as the Lacedemonians had, and cared for no more than would serve the turn of natural necessity. A property they had both in Lands and Goods; and where that resteth, no man can deny them the natural way of giving and receiving by delivery. And therefore though matters of ordinary use seldom come into the ob­servation of story, and this petty ceremony might very well pass sub si­lentio; yet we are not altogether left destitute of the footsteeps thereof in antiquity. Concil. Brit. 319. For Aethbald the Mercian King, above Eight hundred years ago, gave the Monastery of Cutham, with all the Lands thereunto apper­taining, to Christ-Church in Canterbury; and for the confirmation there­of, commanded a clod of earth with all the Writings to be laid upon the Altar. Concil Brit. 192. Another monument hereof more ancient by the space of above [Page 68] an hundred years we find in that Grant of Withered King of Kent, of four Plough-lands in the Isle of Thanet, the latter part whereof this Clause concludes thus: Ad cujus cumulum affirmationis, cespitem hujus supradictae terrae super sanctum altare posui.

Every man had liberty to execute the Law of his Inheritance in his life-time; but some were surprized with sudden occasions, and unexpe­cted issues and ends; and in such cases they did what they could to de­clare their intents by last Will; Last Will. which by common intendment being in writing, hath occasioned some to think that the Saxons in their original had no use thereof, being, as they conceived, so illiterate as not to have the use of writing. But the Character remaining to this day evinceth the contrary; nor can those words of Tacitus, Et nullum est testamentum, in any rational way be expounded in this sence, if we consider the Con­text, which runneth thus: Haeredes & successores cuique liberi, & nullum est testamentum. Which in my opinion founds in this sence: The Heirs and Successours to every one are his Children, and there is no testamentary power to disherit or alter the course of Descent, which by Custom or Law is setled. Otherwise to deny them the use of all testamentary power, was a matter quite abhorring the custom of all the Grecians, from whom they learned all that they had. M. Westm. An. 817. Nevertheless the Saxons had not been long acquainted with the Romanists, Malmsb. gest. Reg. l. 2. c. 2. but they had gotten that trick of theirs also of disheriting by last Will, as by the testament of Aethelwolf, and o­thers of the like nature, in Histories may appear.

The Conveyances formerly mentioned concerned Lands and Goods; Goods. but if no such disposal of Goods were, the ancient German custom car­ried them after the death of the ancestor promiscuously, or rather in com­mon to all the Children; but in succeeding times, the one half by the Law of Edmond passed to the relict of the party deceased, by force of contract rather than course of descent. After him Edward the Con­fessor, recollecting the Laws, declared that in case any one died intestate, the Children should equally divide the Goods; which I take to be understood with a salvo of the Wifes Dower or Portion. As yet therefore the Ordina­ries have nothing to do with the Administration, for Goods passed by de­scent as well as Lands; and upon this custom the Writ de rationabili parte bonorum was grounded at the Common-law, as well for the Children as the Wifes part, F. N. Br. 122. according as by the body of the Writ may appear.

CHAP. XLII. Of times of Law, and Vacancy.

SUch like, as hath been shewed, was the course of Government in those darker times; nor did the fundamentals alter either by the diversity and mixture of people of several Nations in the first entrance, nor from the Danes or Normans in their survenue: not onely because in their origi­nal they all breathed one air of the Laws and Government of Greece, but also they were no other than common dictates of nature refined by wise men, which challenge a kinde of awe in the sense of the most barba­rous. I had almost forgot one circumstance, which tended much to the honour of all the rest, that is, their speedy execution of Justice; for they admitted no delays, till upon experience they found that by staying a [Page 69] little longer they had done the sooner: and this brought forth particular times of exemption, Miror. cap. 4. Sec. 16. as that of Infancy and Child-bearing, in case of an­swering to criminal Accusations. Ll. Sax. cap. 10. Concil. Brit. 518. But more especially in case of regard of holiness of the time: as that of the Lords day, Saints days, Fasts, Em­ber days; for even those days were had in much honour. Nor onely days, but seasons; as from Advent to the Octaves of Epiphany; from Se­ptuagesima till Fifteen days after Easter, or (as by the Laws of the Con­fessor) till Eight days after Easter; and from Ascention to the Eighth day after Pentecost. And though as Kings and times did change, so these seasons might be diversly cut out, as the Laws of Alfred, Aethelstan, Ae­theldred, Edgar, Canutus, and Edward, do manifest; yet all agreed in the season of the year, and that some were more fit for holy observation than others. And thus by the devotion of Princes, and power of the Clergy, the four Terms of the year were cut out for course of Law in the Kings Court, the rest of the year being left vacant for the exercise and maintenance of Husbandry, and particular callings and imployments; saving that even in those times the Courts of the County and Hundred held their ancient and constant course. Miror cap. 4. Sect. Last of all, and as a binding Law unto all, it was provided that false Judges should give satisfaction to the party wronged by them, and (as the case required) to forfeit the residue to the King; to be disabled for ever for place of judicature, and their lives left to the Kings mercy.

CHAP. XLIII. The end of the Saxon Government.

ANd this far of the joynts of the Saxon Government in their Per­sons, Precincts, Courts, Causes, and Laws; wherein as the distance will permit, and according to my capacity, I have endeavoured to re­fresh the Image of the Saxon Commonwealth, the more curious linea­ments being now disfigured by time. Afar off it seems a Monarchy, but in approach discovers more of a Democracy; and if the temper of a body may appear by the prevailing humour towards age, that Go­vernment did still appear more prevalent in all assaults both of time and change. The first great change it felt was from the Danes that stor­med them, and shewed therein much of the wrath both of God and man. And yet they trenched not upon the fundamental Laws of the peoples Liberty. The worst effect was upon the Church, in the decay of the power of Religion and the Worship of God. For after much toil and loss both of sweat and bloud, the Danes (finding that little was to be gotten by blows but blows, and that the Clergy at the least was the side-wind in the course of all affairs) laid aside their Paganism, and joyned with the Clergie: and as their Converts and Pupils, gained not onely their quiet residence, but by the favour of the Clergie to make trial of the Throne; and therein served the Clergie so well, as they brought the people to a perfect Idolatry, with times, places, and persons, and subjection of their Estates to Church-Tributes. And as at Tennis, the Dane and Bishop served each other with the fond Country-man, that whether Lord Dane or Lord-Bishop was the greater burthen, is hard to be [Page 70] determined. Thus became ambitious Prelacy in its full glory, and the poor Church of Christ clouded in darkness, and little hold left for recovery, but onely by the liberty of the Saxon Freemen, which the Danes could ne­ver conquer; not for want of will or power, but of time and occasion: For the Crown returned to the Saxon-line again after the half age of one man, although it was worn by three; so God would have it: nor did any monument of the Danish Government remain, saving a few customs in some places, which shew rather that the Danes were here, than that they ruled here.

To sum up all; The Saxon Common-wealth was a building of grea­test strength downward even to the foundation, arched together both for Peace and War. That by the Law of Decenners, wherein Justice was the bond, their Armies were gathered, not by promiscuous flock­ing of people, but by orderly concurrence of Families, Kindreds, and Decenners, Tacitus. all chusing their own Leaders. And so Honour, Love, and Trust conspired together to leave no mans life in danger, nor death unre­venged.

It was a beautiful composure, mutually dependant in every part from the Crown to the Clown; the Magistrates being all choice men, and the King the choicest of the chosen: election being the birth of esteem, and that of merit; this bred love and mutual trust, which made them as corner-stones, pointed forward to break the wave of danger. Nor was other reward expected by the great men, but honour and admiration, which commonly brought a return of acts of renown.

Lastly, it was a regular frame in every part, squared and made even by Laws, which in the people ruled as Lex loquens, and in the Magistrate as Lex intelligens; all of them being grounded on the wisdom of the Greeks, and Judicials of Moses. Thus the Saxons became somewhat like the Jews, distinct from all other people; their Laws honourable for the King, easie for the Subject; and their Government, above all other, likest unto that of Christ's Kingdom, whose Yoke is easie, and Burthen light. But their motion proved so irregular, as God was pleased to reduce them by another way.

CHAP. XLIV. Of the Norman entrance.

THus was England become a goodly Farm: The Britons were the Owners, the Saxons the Occupants, having no better title than a possession upon a forcible entry, with a continuando for the space of Four hundred years: seldom quiet, either from the claim and disturbances of the restless Britons, or invading Danes; who not onely got footing in the Country, but setled in the Throne; and after gave over the same to the use (as it proved) of another people sprung from the wilde stock of Nor­way, and thence transplanted into a milder Climate, yet scarcely civilized. That in one Isle the glory of God's bounty might shine forth to all the barbarism of Europe, in making a beautiful Church out of the re­fuse of Nations. These were the Normans out of the continent of France, that in their first view appeared like the Pillar of the Cloud, with ter­rour of Revenge upon the Danish pride, the Saxon cruelty, and Idolatry [Page 71] of both people. But after some distance shewed like the Pillar of fire, clearing God's providence for the good of this Island, to be enjoyed by the succeeding generations. Nor was this done by Revelation or Vision, but by over-ruling the aspiring mind of Duke William of Normandy to be a scourge unto Harold for his usurpation, and unto the people for their causless deserting the Royal Stem. Yet because the haughtiest spirit is still under fame and opinion, and cannot rest without pretence or co­lour of Right and Justice, the Duke first armed himself with Titles, which were too many to make one good claim; and served rather to busie mens mindes with musing, whilst he catcheth the prey, than settle their judgements in approving of his way. First, he was Cousin-german to the Confessor, and he childless; and thus the Duke was nigh, though there were nigher than he: but the worst point in the case was, that the Duke was a Bastard, and so by the Saxon Law without the line; nor was there other salve thereto but the Norman custom, that made no diffe­rence; so as the Duke had a colour to frame a Title, though England had no Law to allow it. And this was the best flower of his Garland, when he meant to solace himself with the English, as may appear by what his Son Henry the first sets forth to the World in his Charter whereby he advanced the Abbey of Ely into the degree of a Bishoprick; and wherein, amongst his other titles, Spicileg. he calls himself Son of William the great, Qui Edwardo Regi successit in regnum jure haereditario.

But if that came short, he had the bequest of the Confessor, who had designed the Duke to be his Successor: and this was confirmed by the consent of the Nobility, M. Paris. 1. Ant. Brit. Eccles. 96. and principally of Harold himself, who in assu­rance thereof promised his Sister to the Duke in marriage. This counte­nanced a double Title, one by Legacy, the other by Election; and might be sufficient, if not to make the Duke's title just, yet Harold's the more unjust, and to ground that quarrel that in the conclusion laid the Duke's way o­pen to the Crown. And for the better varnish, the Duke would not be his own Judge, he refers his Title to be discussed at the Court of Rome, and so flattered the Pope with a judicatory power amongst Princes (a trick of the new stamp) whereby he obtained sentence in his own behalf from the infallible Chair. The Pope glad hereof, laid up this amongst his Treasures, as an Estoppel to Kings for times to come: And the King made no less benefit of Estoppel against the English Clergie that otherwise might have opposed him, and of assurance of those to him that were his friends, and of advantage against Harold, M. Paris. 2. that had gotten the Crown sine Ecclesiasti­ca authoritate, and by that means had made Pope Alexander and all the Prelates of England his Enemies.

But if all failed, yet the Duke had now a just cause of quarrel against Harold for breach of Oath and Covenant; Hist. vit. Eadm. [...] wherein if Harold chanced to be vanquished, and the Crown offered it self fair, he might without breach of conscience or modesty accept thereof, and be accounted happy in the finding, and wise in the receiving, rather than unjustly hardy in the for­cing thereof. And this might occasion the Duke to challenge Harold to single Combat, as if he would let all the World know that the quarrel was Personal, and not National.

But this mask soon fell off by the death of Harold; and the Duke must now explain himself, that it was the value of the English Crown, and not the Title, that brought him over. For though he might seem as it were in the heat of the chase to be drawn to London, where the Crown was, and that he rather sought after his Enemies than it; yet assoon as he per­ceived [Page 72] the Crown in his power, he disputed not the right, although that was Edgar's, but possessed himself of the long-desired prey: and yet he did it in a mannerly way, as if he saw in it somewhat more than Gold and pre­cious Stones: for though he might have taken it by ravishment, yet he chose the way of wooing by a kind of mutual agreement. Thus this mighty Conqueror suffered himself to be conquered, and stooping under the Law of a Saxon King, he became a King by lieve; wisely foreseeing, that a Title gotten by Election, is more certain than that which is gotten by Power.

CHAP. XLV. That the Title of the Norman Kings to the English Crown was by Election.

SOme there are that build their opinion upon passionate notes of angry Writers, and do conclude that the Duke's way and Title was wholly by Conquest, and thence infer strange aphorisms of State, destructive to the Government of this Kingdom. Let the Reader please to peruse the ensu­ing particulars, and thence conclude as he shall see cause.

It will easily be granted that the Title of Conquest was never further than the King's thoughts, if it ever entred therein: else wherefore did he pretend other Titles to the world? But because it may be thought that his wisdom would not suffer him to pretend what he intended, and yet in practice intended not what he did pretend; it will be the skill of the Reader to consider the manner of the first William's Coronation, and his succeeding Government. His Coronation questionless was the same with that of the ancient Saxon Kings; for he was crowned in the Abbey of Westminster by the Archbishop of York, because he of Can­terbury was not Canonical. Hoveden. Eadmer. Hist. l. 1. p. 13. M. Paris. vit. Gulielm. Malmsb. l. 3. fol. 154. Wigorn. An. 1066. Glossar. Ll. Gul. Spicil. 190. At his Coronation he made a solemn Co­venant to observe those Laws which were bonae, & approbatae, & anti­quae legis Regni; to defend the Church and Church-men; to govern all the peo­ple justly; to make and maintain righteous Laws; and to inhibit all spoil and unjust judgements. The people also entred into Covenant with him, That as well within the Land as without, they would be faithful to their Lord King William, and in every place to keep with all fidelity his Lands and Honours, together with him, and against Enemies and Stran­gers to defend. It is the self-same in substance with the fealty that the Saxons made to their Kings, as will appear by the parallelling them both together. The Saxons were sworn to defend the Kingdom against Strangers and Enemies, together with their Lord the King, and to preserve his Lands and Honours, together with him, with all faith­fulness; so as by the Saxon way, the Allegiance first terminated on the Kingdom, and then, as in order thereunto, upon the King, with his Lands and Honours. But the Norman either wholly omitted the first, as needless to be inserted in a municipal Law, it self being a Law in nature; or else includeth all within the words Lands and Honours, taking the same in a comprehensive sence for the whole Kingdom, and so made up the sum of the Saxon fealty in fewer figures. Which may seem the more pro­bable of the twain, because little reason can be rendred why the King should restrain that defence to his private Lands (if he claimed all by Con­quest) [Page 73] whenas all equally concerned him; or why he should exclude the publick, whenas both himself and all he had was embarqued therein, and it might subsist without him, but contrarily not he without it, ap­peareth not to my understanding; nor did the thing enter into the King's purpose, if the file of his purposes be rightly considered: For speaking concerning Castles, Burroughs, and Cities, which are in nature limbs of the Common-wealth, Ll. Gul. Spicil. 61. he saith that they were built for the defence of the people and Kingdom. Was this the service of Walls and Fortifications, and not much rather of men within those places of strength? Certainly the plain English is, that in time of breach of publick quiet and peace, the Subjects were bound to defend the Kingdom, and in order thereto the people of the same, and of the King's right included in the publick de­fence; else it were a strange conclusion, that each man in particular, and in their own personalone, was bound to defend the King's right; but be­ing imbodied, the Kingdom. And yet more clearly it's apparent, in that the service of the order of Knight-hood, which was the chief strength of the Nation in those days, was determined upon the service of the King, and defence of the Kingdom; or which is more plain, for the service of the King in or for defence of the Kingdom, M. Paris An. 1100, 1213. Stat. 7. E. 1. as the Statute of Mortmain expounds the same. But not to force the King's sence by argument; if the King had purposely omitted that clause of the Kingdoms safety, as of inferiour regard to his own personal interest; it was one of his rashest di­gressions, wherein he soon espied his errour: for in the midst of his strong and conquering Army he held himself unassured, unless he had a better foundation than that which must change with the lives of a few at the utmost. And therefore besides the Oath of fealty formerly mentioned, he established a Law of Association, that all free men should be sworn Bre­thren; 1. To defend the Kingdom with their lives and fortunes against all enemies, Ll. Gulielm. Spicil. 59. to the utmost of their power. 2. To keep the peace and dignities of the Crown. 3. To maintain right and justice by all means, without deceit and delay. Joyn then these two Oaths together, viz. that of fealty, and this of fraternity; and it will easily appear, that the Allegiance of the English to the Norman Kings was no other than what might stand with Brother­hood, and tender regard of the publick above all: and differing from the Saxon fealty on [...]y in this, that that was in one Oath, and this in two. Wherefore whatsoever respects steered in the rear of the King's course, it is less material so long as the van was right; albeit that the sequel will prove not much different from the premises, as will appear in the foot of the whole account.

Thus entred the first Norman upon the Saxon Throne; William Rufus. and as he had some colour of right to countenance his course, so had his Son his Fa­thers last Will, and yet he had as little right as he. This was William Rufus, that was of his Fathers way, but of a deeper dye; and therefore might well be called William Rufus, or William in grain. He was exceed­ing happy in the fear or favour of the people, for he had nothing else to make room for his rising. True it is, he had the good will of his Father, but he was dead; and probably the people as little regarded it, as he did them. Nor was it ever observed that the English Crown was of so light account, as to pass by devise of cestui que use; and therefore though it was designed to him from his Father, yet both right and possession was left to the people to determine and maintain. The Clergy first led the way, Eadmer. Hist. Wigorn. M. Paris. ha­ving first taken a recognizance of him for his good behaviour towards them; which he assured, as far as large promises and protestations would [Page 74] serve the turn; and within one year after, standing in need of the favour of the Commons (to maintain possession against his Brother Robert) he gave them as good security as the Clergy had; which he kept in such manner, that it was a wonder that one of so small interest in the Title, but what he had by the peoples lieve and favour, should rule in such manner, and yet die a King; the favour of the people being like a Meteor, that must be continually fed, or it soon goes out and falls: for evident it is, that the right of inheritance was his elder Brother Roberts, who was the bra­ver man, and more experienced Souldier; and upon these principles had obtained the love of the Norman Barons (the flower of his Fathers Chi­valry) and the liking of the Clergy, M. Paris. An. 1088. after they had found by experience the emptiness of their hope in his Brother William; and was every way so superiour to his Brother in advantages, as we are left to believe that William got the day without any other ground, but only that God would so have it. It is true, the English stuck close to him; but how they were gained or contained, Writers speak not, but tell us of his promises, which also they tell us were vain, and never had issue further than would stand with his profit.

Exit William Rufus, Henry first. and in comes his younger Brother Henry the first of that name; a Prince that excelled in wisdom, and by it ruled his cou­rage, which served him so far, as his aims and ends reached: his Title was no better than his Fathers or Brothers, but rather worse; for he had no colour of last Will to propound him to the people, and his elder Bro­ther Robert was still alive, and by his service of the Church in the War of Jerusalem, might merit that respect of the Clergy, as not to permit him to be a loser by so well-deserving service, as in those days that was accounted. Nevertheless the English look upon Henry as the fitter man for their turn; being now at hand, and Robert at Jerusalem; and being a native born in England, civilized into the English garb by education; and of a wiser and fairer demeanour, and more inclining to peaceable Govern­ment, which both Normans and English much inclined to, as being weary of thirty years service in the Wars. And therefore it is not marvellous if they applied themselves to him in a way of capitulation, Math. 1100. Eadmer. Speed. and less won­derful if he hearkned thereunto; and yet neither unadvisedly yielded un­to by him, nor traiterously propounded by them, as some in zeal to Mo­narchy conclude the point. The worst of the whole matter resting in this, that the King bound himself to be just, that he might be great; and the people to submit unto Justice, that they might be free, like as their Ancestors were, and themselves by the Law established ought to be. For the capitulation was in substance setled by the ancient Laws of the Saxons mixed with some additions of Laws made by the Kings Father, with the joynt advice of the grand Council of the Kingdom; all which both the Norman Williams had often confirmed by solemn protestations and promi­ses; however their actions, Math. Paris. upon sudden surprisal, were malae consuetudines and exactiones injustae, by this Kings own acknowledgment. Thus these three Norman Kings made their way to the Throne; the first by Arms, under colour of Title; the second by a kind of Title, under colour of Arms; and the last by favour, but all entred the same by capitulation, election, and stipulation; and for the general, had some regard to suit their course in order of retaining the good will of their people, although in a different measure, according to the differency of occasions.

CHAP. XLVI. That the Government of the Normans proceeded upon the Saxon principles; and first of Parliaments.

THE principles which I mean, are these: First, the Legislative power, and influence thereof upon the whole. Secondly, the Members of that Government, with their several motions. Thirdly, the Laws and Customs, or Rules of those Motions. And first concerning the Legislative power. Although it be true that the first Williams great and most con­stant labour was to have and to hold, and had but little time or liberty to enjoy; yet that time of rest which he had, did apply it and himself in the setling of the Laws by the advice of Common-council: I say, not by advice of his own heart, or two or three Norman Lords, Spicileg. p. 5. or of the Norman Nobility only, as some men take the confidence to aver, as if they had been eye-witnesses to the actions of those days; but by the joynt advice of the grand-Council of the Lords, and wise men of the Kingdom of Eng­land. I will not insist upon force of argument to shew, that common reason must of necessity sway the King into this course, but shall reserve that to another place; the testimonies of Writers must now serve the turn: and herein, the testimony of the Chronicle of Lichfield must have the first place, which speaks both of a Council of Lords; and saith, that by their advice he caused to be Summoned a meeting of all the Nobles and wise men through all the Counties of England, to set down their Laws and Customs. This was in the fourth year of his Reign, or rather after his entry, and as soon as the Kingdom was brought into any reasonable posture of quiet; and which, besides the intention of governing the King­dom according unto Law, doth strongly pretend that the Parliament had the Legislative power and right of cognizance, and judicature in those Laws that concerned the Kingdom in general; and for the particular Laws or Customs of several places or Precincts, it was referred to a Com­mittee or Jury in every County to set them forth upon Oath.

Secondly, that this Council had power to change Laws, may likewise appear in that Act made concerning the introduction of the Canon-Law, Spicil. 167. Fox. Mart. l. 4. which shews not only the power of that Council in Church-matters, but also that the Canon was no further in force than the same would allow; and this was also done by Common council, and the Council of the Arch­bishops, Bishops, Abbots, and all the Princes of the Kingdom; which connexion shews plainly, that there was a Council besides that of the Pre­lates and Princes.

Thirdly, in matters of general charge upon the whole body of the people, the King used also the help of this Grand-council, as may espe­cially appear in the charge of Arms imposed upon the Subjects; Ll. Gulielm. c. 58. Spicil. which was said to be done by the Common council of the whole Kingdom; as is witnessed even by the Kings own Law. It may seem also, that the grand Officers of the State were elected by such grand assembly of the wise men; for we find that Lanfrank was elected to the See of Canterbury by the as­sent of the Lords and Prelates, and of the whole people, that is, Antiq. Brit. fol. 110. by the Par­liament of England; and as probable it is, that Bishops were therein also elected, for that the Bishop of Lichfield resigned his Bishoprick in such like [Page 76] Assembly, Baron. Annal. An. 1070. if the meaning of Lanfrank be rightly understood, who saith in his Letter, that it was in conventu Episcoporum atque Laicorum.

Lastly, that one Law of the Kings, which may be called the first Mag­na Charta in the Norman times, by which the King reserved to himself from the free-men of this Kingdom nothing but their free service, Ll. Gulielm. c. 55. in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common-council of the whole Kingdom; and so asserts in one the liberty of the free-men, and of the representative body of the Kingdom. These footsteps of the Parliament find we in the Conquerors time, besides other more general intimations scattered amongst the Hi­storians; which may induce opinion to its full strength, that this King, however Conqueror he was, yet made use of this additional power of Parliament to perfect his designs; and it may be, more often than either of his Sons, that yet had less pretence of superlative power to countenance their proceedings.

William Rufus was a man of resolution no whit inferiour, if not sur­passing his Father; and had wit enough for any thing but to govern his desires, which led him many times wild, and might occasion conceit that he was almost a mad King, though he were a witty man; and therefore it is the less marvail if he used not the help of the Common-council more than needs must; where Kings many times are told of that which they are loth to know. Nevertheless William the second could not pass over thirteen years without a parley with his Commons and Clergy, unless he meant to adventure a parley between them and his Brother Robert, who like an Eagle eyed his posture, though he hovered afar off.

But Henry the first was more wise, and being trained up even from the Cradle in the English garb, moralized by Learning, and now admitted into the Throne, found it the wisest course to apply himself to the rule of an English King, viz. To win and maintain the good opinion of the people, by consorting together with them under one Law; and pledging himself there­to, by taking unto Wife one of the English Blood-royal: by this means he refeised and reassumed the English, in partnership with the Norman in their ancient right of Government; and reconciled the minds of the people, under a lively hope of enjoying a setled Government. Nor were they greatly deceived herein, for his course was less planetary than that of either of his predecessors; and yet we find little said of his parley with his people in a Parliamentary way, although more of his Laws than of any of his predecessors. The reason will rest in this, that the Writers of those times touch more upon matters of ordinary than political obser­vation, and regarded rather the thing, than the place or manner how. The Laws therefore, Bede Hist. l. 3. c. 30. although they are not entituled as made in Parlia­ment, yet in the continuation of the History of Bede, it is noted that the King renewed or confirmed the ancient Laws in Concilio peritorum & probo­rum virorum regni Angliae; which may give sufficient cause to suppose, that he declined not the ancient way, no more than he did the ancient Law.

CHAP. XLVII. Of the Franchise of the Church in the Normans time.

THE Canon-Law, that ever since Austin's coming, like Thunder, rumbled in the Clouds, now breaks forth with confusion to all opposers. It had formerly made many fair proffers of service to this Island, but it was disaccepted, as too stately to serve; yet by often courte­sies received, it was allowed as a Friend afar off. For the vast body of the Roman Empire, like a body wasting with age, died upward, and left the Britains to their own Laws, before the second Beast was grown; which be­ing young, was nourished under the Imperial Law of the first Beast, till it grew as strong as its Dam, and began to prey for it self. The Empire perceiving its grey hairs, and the youthful courage of this Upstart, was glad to enter mutual League with it, That to maintain the Ecclesiastical Monarchy, and This again to support the Imperial: and so became the Ca­non and Imperial Law to be united, and the Professours to be utriusque juris. But this parity continued not long; the young Beast looked like a Lamb, but spake like a Lion; and contrarily, the Eagle had cast its Fea­thers, and could towre no more; so as by this time the Pope was too good for the Emperour, and the Canon-Law above the Imperial; yet al­lowing it to serve the turn: And so the Professours of both Laws became Students in the Civil, but Practisers of the Canon. This Composition thus made beyond the Seas, the great work was how to transport it over into this Isle: for the Emperour could entitle the Pope to no power here, because none he had. Austin the Monk undertakes the work; he offers it to the Britains under the goodly Title of Universal Bishop: but they kept themselves out of Canon-shot. The Saxons allowed the Title, but liked not the power; the Monk observed the stop, and left time to work out that which present cunning could not, being content for the present that a League of Cohabitation should be made between the two Swords, Ll. Edw. c. 3. though the spiritual were for the present underling; not despairing that it would work out its own way over the Saxon Law, as it had done over the Imperial. Nor did his conceit altogether fail: for the Saxons by little allowed much, and the Danes more; although the main was preserved until the Normans came upon the Stage, who made their way by the Pope's lieve, and gave him a colour of somewhat more than ever any of their Saxon predecessors had done; and to gain the more quiet possession of the Crown to themselves, allowed the Pope the honour of their Coun­cil learned to draw the Conveyance: which, as some think, was made ad­vantageously for the Pope himself in point of tenure, but more probably in the Covenants. For the Conquerour was scarce setled in his seat, but the Canon-Law began to speak in the voice of a Royal Law: Spicil. 167. Fox. Mart. l. 4. First com­plaining of misgovernment, as if the Church were extremely wronged by having the same way and Law of Tryal with the Commons of England; and then propounds four several Expedients, enough to have undone the whole Commonwealth in the very entrance, had not the superstition of those times blinded both Parliament and People, and rendred them wil­ling to that which their successours in future ages often repented of.

No offence against the Bishops Laws, shall be handled in the Hundred.

By the Saxon Law, Church-matters had the preheminence both in the [Page 78] Hundred and in the County; and it was the Bishop's duty to joyn with the Sheriff in those Courts, to direct and see to the administration of Ju­stice: and yet the Canon had been above three hundred years foregoing in the Negative.

No Case concerning the Regiment of Souls, shall be brought before the Secu­lar Judge.

The Regiment of Souls was a common place sufficient to contain any thing that was in order thereunto: and so every one that hath a Soul, must be no more responsible unto the temporal Judge for any matter concerning it, but unto the Ecclesiastical power: And this not onely in case of scandal, as against the moral Law or rule of Faith; but for disobe­dience done to the Canons, made afar off, concerning any gesture or garb that may come within the savour of an Ecclesiastical conceit.

That all Delinquents against the Bishops Laws, shall answer the Fact in a place appointed by the Bishop to that end.

So as now the Bishop hath gotten a Court by the Statute-Law, that had formerly no other Cards to shew but that of the Canon; and a Court of such place as the Bishop shall appoint, however inconvenient for di­stance or uncertainty it be.

That the tryal of such matters, shall be according to the Law of the Canon, and not according to that of the Hundred.

That is, not by Jury, but by Witnesses, in a clandestine way, if the Bi­shop please; or without any Accuser, or by more scrutiny, or any other way that may reserve the Lay-man to the breast of a prepossessed spirit of the spiritual Judge. And thus the poor Country-man is exposed to the censure of an unknown Law, in an unknown Tongue, by an unknown way; wherein they had no footing, but by an implicit Faith. And herein the providence of God (I imagine) was more manifest than the wisdom of Man, which was too weak to foresee events at so great a di­stance: for questionless it was a point of excellent wisdom, for the people (now under a King of a rugged nature, that would not stick to catch whatsoever he could get) to deposit part of their Liberties into the hands of the Clergie; from whom moderation might be expected, as from Friends and Neighbours, and (as Partners in one Ship) mutual engage­ment to withstand the waves of Prerogative of Kings, that seldom rest till they break all Banks, and sometimes over-reach their own Guard, and cannot return when they would. And thus it fell out: for many times the Pope and Clergie became Protectors of the peoples Liberties, and kept them safe from the rage of Kings, until the time of restitution should come; and became not onely a Wall of defence to the one, but a Rock of offence to the other. For the Tripple-Crown could never solder with the English, nor it with that; the strife was for Prerogative, wherein, if the Clergie gained, the Crown lost; and no moderation would be allow­ed. For the conquering King was scarce warm in his Throne, whenas the Pope demanded Fealty of him for the Crown of England; Spicil. 164. Baron. Annal. An. 1068. and the King's own good Archbishop and friend Lanfrank delivered the Message; as also Anselm did afterwards to William Rufus; which though these Kings had courage enough to deny, yet it shewed plainly that the Popes mea­ned no less Game than Crown-glieke with the King and people; the Arch­bishops and Bishops holding the Cards for the Pope, while in the interim he oversaw all. Eadmer. Hist. l. 1. p. 25. The Norman Kings thus braved, paid the Popes in their own Coin, and refused to acknowledge any Pope, but such as are first allowed by their concurrence.

[Page 79] Thus have we the second bravado of the Canon-Law; for as yet it was not so fully entered, as it seemed. The words of the Act of Parlia­ment, it's true, were general; yet their sence was left to time to expound, and the course of succeeding affairs nevertheless passed with a non obstante. For whereas in those days the Clergie claimed both Legislative and Exe­cutory power in Church-matters, the Normans would allow of neither, but claimed both as of right belonging to the Imperial power of this Island, originally and onely. As touching the Legislative power, it is e­vident, that notwithstanding the Canon that had long before this time vo­ted the Laity from having to do with Church-matters; yet the Norman Kings would neither allow to the Metropolitans the power of calling Sy­nods nor such meetings, but by their lieve, Eadmer. Hist. p. 6. & 24. Spicil. 163. although it was earnestly contended for. Neither could the Clergie prevail to exclude the Laity out of their Synods, being assembled, nor from their wonted priviledge of voting therein; albeit that for a long time by Canon it had been con­tradicted. The differences between the Clergie and the Kings, concer­ning these and other matters, grew so hot, that Kings liked not to have any Synods or meetings of publick Council; Epist. ad Pascal. p. p. and Archbishop Anselm complained that William Rufus would not allow any to be called for thir­teen years together: Which by the file of story, compared with that Epistle, made up the King's whole Reign. And this was questionless the cause that we find so little touch upon Parliamentary Assemblies in the Norman times, Kings being too high to be controuled, and Bishops too proud to obey: but necessity of State, like unto Fate, prevails a­gainst all other interests whatsoever; and the wisdom of Henry the first in this prevailed above that of his predecessors, as far as their Will was beyond his. For it was bootless for him to hold out against the Church that stood in need of all sorts to confirm to him that which common Right (as then it was taken) denied him; and therefore (though it cost him much trouble with Anselm) he re-continued the liberty of pub­lick Consultations, and yet maintained his Dignity and Honour seemly well. I shall not need to clear this by particulars; for besides the pub­lick Consultations at his entrance, and twice after that, for supply or aid for his Wars, and the marriage of his Daughter with the Emperour, it is observed that the Archbishop of Canterbury summoned a Council at West­minster, but it was Authoritate Regia, Conten. Wigorn. An. 1127. and that there assembled magnae mul­titudines Clericorum, Laicorum, tam divitum quam mediocrium; and that upon the third day the Debate was de negotiis saecularibus nonnullis: The issue of all was, that some things were determinata, others dilata, and o­ther matters propter nimium aestuantis turbae tumultum ab audientia judican­tium profligata. Out of which may be probably concluded, 1. That the Laity as yet were present in Councils with the Clergie. 2. That they were all in one place. 3. That they all had votes, and that the major number concluded the matter. 4. That certain persons used to deter­mine of the major number by the hearing, and that the Votes were still clamore non calculis. 5. That they held an Order in debating of affairs, viz. on some days Ecclesiastical, and on other days Secular. 6. That all matters concluded, were attested by the King, who, as 'tis said, did give his consent, and by his authority did grant and confirm the same. And upon the whole matter it will be probable, that as yet Councils, and those now called Parliaments, differed not in kind, although possibly there might be difference of names, in regard that some might be immediately and mainly occasioned and urged by Temporal Exigences, and others by [Page 80] Ecclesiastical; but whether Temporal or Ecclesiastical the first occasion was, yet in their meetings they handled both as occasion offered it self.

Secondly, as the Clergie could not attain the sole Legislative power, so neither had they the sole Juridical power in Ecclesiastical Causes: for not onely in case of errour in the Ecclesiastical Courts was an Appeal reserved to the King's Court, as formerly in the Saxons time; but even those things which seemed properly of Ecclesiastical cognizance, were possessed by the King's Court in the first instance, as that of Peter pence, which was a Church-tribute, and might be claimed to be properly the Church-cogni­zance much rather than Tythes: Ll. Gulielm. c. 20. Spicil. 180. and yet by the Law of this Kingdom in the Conquerour's time, it is especially provided, That defaults of pay­ment of that duty shall be amended in the King's Court, and a fine for default was given to the King, albeit that the Bishop was made the Col­lector, and the Pope the Proprietor. And many other particulars, which were holden to be of Ecclesiastical cognizance, Kings would draw them within the compass of maintaining the peace of the Church, which properly belonged to them to defend; and so had the cognizance of them in their own Courts, and fines for invasion of the Church-rights. But because this may seem but colourable, and by way of flattery of the Churches right, and not in opposition thereof; in other things it will appear plain­ly that Kings were not nice in vindicating their own claim in matters which the Clergie held theirs quarto modo; as namely in the case of Ex­communication, a Weapon first fashioned by the Church-men, and in the exercise whereof themselves were in repute the onely Masters; and yet in this were mastered by Kings, Eadmer. Hist. p. 6. Ll. H. 1. cap. 5. whose Laws directed and restrained the swelling of that censure, and made it keep measure; whose Tenants and Officers and Servants must not be meddled with by this censure, but by the King's lieve; nor must they be called to answer but in the King's Court. That Right still remained to them after the spoil made by the Hierarchy upon the Rights of all the rest of the Free-men, and therefore could not of right be called nova in the Historians sence; seeing that it was no other than the ancient custom used amongst the Saxons before that the Clergie had either purpose or power to reach at such a height as afterwards by degrees they attained unto. Furthermore, the Hierarchy, as they neither could possess the Legislative nor Juridical power in Church-matters, so neither could they possess themselves: for as yet they were the King's men, and the more the King's men, because they now think a Bishoprick but a naked commodity, if not robed with a Barony. Never­theless, before that ever they knew that honour, whatever the Canon was for their election, yet both their Title and Power de facto was derived to them from the Kings, who also invested them with Staff and Ring; nor had the Pope as yet (though he had conquered the Hierarchy) possessed himself of their colours: but during all the Norman times, the Kings maintained that trophy of the right they had from their Predecessours, notwithstanding the many assaults from Rome, and treacheries of the Ca­thedrals within the Realm. Eadmer. Hist. l. 2. p. 53. & l. 3. & l. 4. Eadmer. Hist. l. 1. & l. 5. Wigorn. An. 1128. Spicil. 142. And albeit sometimes Kings were too weak to hold the shadow, yet the convention of the States did maintain the substance, viz. the right of Election without intermission, as the examples of Lanfrank unto the See of Canterbury, and Anselm and Ralph his succes­sours, and of Thomas into the See of York, and Ralph Coadjutor to Thur­stan Archbishop of the same See, and of Gilbert into the See of London, be­sides others, do sufficiently set forth. Whether it was because the conven­tion of States was more stout, or that the Bishops, now wedded to Tem­poral [Page 81] Baronies, were so unquestionably interessed in the publick affairs of the Commonwealth, that it was against common sense to deny the States their vote and cognizance of their Election, I cannot determine; yet it is a certain truth, the more Baron, the less Bishop, and more unmeet for the service of Rome: Politickly therefore it was done by Kings to hold these men by a Golden hook▪ that otherwise had prostituted themselves to a for­reign power, and proved absolute deserters of their Countries Cause, which now they must maintain under peril of the loss of their own honour.

In the next place, as they were the King's men, so their Bishopricks and Diocesses were under the King's power to order, as by the advice of the Bishops and Baronage should be thought most convenient; either to en­dow another Bishop with part thereof, Eadm. l. 4. p. 95, 96. and so to make two Diocesses of one, as befel in the case of the Diocess of Lincoln, out of which the Diocess of Ely budded in the time of Henry the first; or to endow a Monastery or other Religious foundation with part, and exempt the same from all E­piscopal or ordinary jurisdiction, as in the example of the foundation of the Abbey of Battel in Sussex, in the time of William the Conquerour, Spicil. 165. may appear.

Lastly, whatever the first intention of this recited Statute were, it may probably be judged, that it was but a noise to still the Clergie; and that it never had more than a liveless shape, not onely in regard of the before-mentioned particulars, but especially in regard of that subservient Law of Henry the first concerning the County-Court, which reciteth it as a custom in his time used, that the Bishop and Earls, Ll. Hen. 1. [...]. with other the chief men of that County, were there present as Assistants in directory of judgment. And that in order are handled first, matters of the Church: Secondly, Crown-pleas: Thirdly and lastly, Common-pleas. However therefore the Kings spake fair, they either acted not at all, or so coolly, as the current of the custom was too strong; but most probable it is, that the Kings spake fair till they were setled in their Thrones, and afterwards pleased them­selves: for by the general thred of story, it may appear that the Clergie in those times were more feared than loved, and therefore ridden with a strait Rein. The Prelacy on the contrary grew unruly, yet too weak for the rugged spirits of the Norman Kings; they are glad to be quiet, and the Pope himself to drive fair and softly, as judging it expedient potestatem Regalem mitius tractandam, Greg. Epist. l. 9. and continued that course and posture till the calmer times of Henry the first; wherein they mended their pace, Eadmer. Hist. l. 4. p. 95. and got that without noise which they had long striven for, viz. the prehemi­nence and presidency in the Synods, though the King himself be present; and (if the Historian writeth advisedly) the whole ordaining, or Legisla­tive power, for so runs the stile or phrase of the Author, Archiepiscopi & Episcopi statuerunt in praesentia Regis, as if the presence of the King and his Barons and People, were but as a great Amen at the Common-prayer (af­ter the old stamp) to set a good colour upon a doubtful matter, to make it go down the better. How the Kings brooked this draught, I cannot say; but it hath made the Kingdom stagger ever since, and it may be fea­red will hardly recover its perfect wits, so long as the brains of the Clergie and the Laity thus lie divided in several Cells.

CHAP. XLVIII. Of the several subservient Jurisdictions by Provinces, Marches, Counties, Hundreds, Burroughs, Lordships, and Decenna­ries.

HAD the Normans owned no other Title than that of Conquest, doubtless their mother-wit must needs have taught them the ex­pediency of preserving the particular subservient Jurisdictions of the King­dom entire and unquashed, if they regarded either the benefit of their Conquest, or reward of their Partners and Allies; unless it should be al­lowed unto Conquerours to be more honourable for them to do what they will, rather than what is meet. But hereof there is no cause of que­stion in this present subject; for nothing is more clear than that Wales en­joyed in the Conquerour's time, and for ages after him, its ancient Liber­ties, Tribute excepted: nor did Conquest ever come so nigh to their Bor­ders, as to trench upon the Liberties of the Marches. For as it had been a piece of State-nonsence to have holden two sort of people under conquest, and their Marches in freedom; or to preserve them in good Neighbour­hood by Marches, which by the Law of Conquest were made one: so was it no less vain, if all had been once subdued by Conquest, to have raised up the Liberties of the Marches any more.

And as they had less cause to have invaded the bounds and ancient li­mits and partitions of the Counties, County-courts. so, questionless, had they so done, they would have taken the old course of the Micklemote, E [...]dmer. Hist. l. 4. p. 96. as they did divide the Diocess of Lincoln into two Diocesses, by advice of the Bishops, Princes, and other wise and holy men, and turned the Abbey of Ely into a Bishop's See. But it was their wisdom to preserve the ancient Land-marks; Ll. Hen. 1. c. 6. and no less both wisdom and care, to continue their due Priviledges and Inte­rests to each. Every County had its Court, and every Court its won­ted Jurisdiction: No complaint must be to the King's Court, Ll. Gulielm. cap. 41, & 42. if right may be done in the County; no distress must be taken but by Warrant from the County, Ll. Gulielm. cap. 64. and that must be after complaint thrice made. The County-court must be called as our Ancestors have appointed: Such as will not come as they ought, shall be first summoned, and in case of default di­strained; at the fourth default, the Complainant shall be satisfied out of the distresses so taken, and the King also for his Fine. These are the ex­press Laws of the Conquerour's own establishment; Ibid. c. 64. the last of which al­so Hen. 1. confirmed by another express Law, saving that he would allow but of two Summons and two Distresses, before execution. And as it was one principal work that he undertook to reduce the Laws into course, which had been intermitted during the violent times of his Father and Brother, (the first of whom never had liberty for reformation, and the latter never had will) so amongst other Laws he setled those concerning the County-court; namely, Ll. Hen. 1. c. 7. 1. That the Bishops, Earls, and chief men, should be present for direction. 2. That it should be holden once each month. 3. That the Church-matters should precede, and then the Crown-pleas. And lastly, the Common-Pleas; besides some other particulars concerning pleading, and proceedings in the handling of Causes. Neither were these Causes of a petty regard onely, but of greatest concernment: One example I shall re­mind the Reader of, and not recite in terminis, but refer to Mr. Selden's [Page 83] own Pen. The occasion was this: Odo the Conquerour's half Brother, Spicil. 19 [...]. was by him made Earl of Kent, and therewith had the gift of a large Ter­ritory in Kent; and taking advantage of the King's displeasure at the Arch­bishop of Canterbury, Stigand. possessed himself by disseism of divers Lands and Tenements belonging to that See. Lanfrank the succeeding Archbishop being informed hereof, petitioned to the King that Justice might be done him secundum legem terrae: and the King sends forth his Writ to summon a County-court. The Debate lasted three days before the Free men of the County of Kent, in the presence of many chief men, Bishops and Lords, and others skilful in the Laws; and the Judgment passed for the Archbi­shop Lanfrank upon the Votes of the Free men. This County-court was holden by special summons, and not by adjournment, as was allowable by the Saxon Law upon special occasions: And this Suit was originally be­gun and had its final determination in the County-court, and not brought by a Tolt out of the Hundred-court, as is supposed by an honourable Re­porter; nor by the ancient Laws could the Suit commence in the Hun­dred, because the Lands and Tenements did lie in several Hundreds and Counties. The upshot of all is, that the County-courts in those days were of so great esteem, that two of the greatest Peers of the Realm, one a Nor­man, the other an Italian, did cast a Title in fifteen Mannors, two Town­ships, with many Liberties, upon the Votes of the Free-holders in a County-court, and that the Sentence was allowed and commended by the King, and submitted to by all.

In the next place we are to come to the Hundred-courts, Hundred-court. of which there are by the Normans allowed two sorts; the first whereof was holden twice a year: This was formerly called the Torn, and was the Sheriff's Court; hereof little notice is taken, Ll. Hen. 1. c. [...] saving that by the Laws of Henry the first its work seems to be much designed to the view of free pledges. But the more ordinary Court, is that which belongs to the Lord of the Hundred, unto whom also belong the Fines in cases there concerned. Ll. Gulielm. cap. 41. This Court is to be holden once in each month; and no Suit to be begun in the King's Court, Ll. Hen. 1. c. 7. that regularly ought to begin in the Hundred. Ll. Gulielm. cap. 41. No Distringas shall issue forth till three demands made in the Hundred. And three Distresses shall then issue forth; and if upon the fourth the party appear not, Ll. Guliem. cap. 42. Execution shall be by sale of the Distress, Ll. Hen. 1. c. 64. and the Complainant shall receive satisfaction.

But by the latter Laws of the same King, there are but two Summons allowed, and then two Distresses; and in case no appearance be, Execu­tion shall be for the Complainant, and for the King's Fine.

Lastly, as the case concerned either persons or places, Ll. Hen. 1. c. [...]. sometimes they used to joyn several Hundreds together into one Court: but this was by special Commission or Writ.

As touching inferiour Courts of Towns and Mannors, there's little observa­tion to be had, Courts of Towns and Mannors. being of too private a regard to come into fame in those rough times: yet in Hen. the first's Laws it is ordered that Town-courts should meet every month, Ll. Hen. 1, c. 7. and that Lords should hold Pleas either in their own persons, or by their Stewards; and that the chief man in the Parish, with four other of the chiefer sort, and the Minister or Parish-Priest, should joyn their assistance in that work. But in nothing more did the Norman Kings shew their paternal love to the Commonwealth, than in the Law of Pledges or Decenners: for as of all other Beauties, Decenners. this suffered most ble­mish from the storm of the Norman Invasion; so was it their especial care to renew the life thereof, not now amongst the Natives onely, but joyning the Normans to the Saxons in the same bond of Brotherhood, utterly [Page 84] drowned thereby all memory of Lordly power; and so of divers peoples making one, conquered even Conquest it self, if any were, and made all joynt-partners in one common Liberty.

Every Free-man must be under Pledges to satisfie Justice, Ll. Gulielm. cap. 64. in case of delin­quency.

Over every nine persons under Pledges, Ll. Hen. 1. c. 8. there must be one man in Autho­rity.

View of free Pledges must be, to see that the Decennaries be full; and if any be departed, to enquire the cause: and if any be come in, whether he be under Pledges or not.

And thus the Norman Kings had their people under treble guard: one of Fealty, the other of Association, and the third that of Pledges; and all little enough to secure that which they in their own Consciences might have some cause to question whether it belonged to them or not.

CHAP. XLIX. Of the Immunities of the Saxon Free-men under the Norman Government.

THE freedom of an English-man consisteth in three particulars: First, in ownership of what he hath: Secondly, in voting any Law, whereby that ownership is to be maintained: And thirdly, in having an influence upon that Judicatory power that must apply that Law. Now that the English under the Normans enjoyed all this freedom unto each Man's own particular, besides what they had in bodies aggregate, may appear, as followeth: The Free-men of England were such as either joyned in the War with Harold against the Normans; or such as absen­ted themselves from the way of opposition or enmity, and were either waiting upon their own affairs, or siding with the Normans. And que­stionless all the sadness of the War befel the first sort of the English, whose persons and Estates (to make the ways of the first Norman Wil­liam regular, and of one piece) never fell so low as to come under the Law (or rather the Will) of Conquest; but in their worst condition were in truth within the directory of the Law of forfeiture for Treason against their Soveraign Lord, whose claim was by Title, as hath been already noted. The other sort either did appear to be the Normans friends, or for ought appeared so were: and so never offending the Law, never suffered any penalty; but held their persons and possessions still under the patronage of Law, as anciently they and their Ancestors had done. And that this was the Normans meaning, they publish the same to the World in a Fundamental Law, Ll. Gulielm. cap. 55. whereby is granted, That all the Free-men of the whole Kingdom shall have and hold their Lands and Possessions in hereditary right for ever.

And by this being secured against forfeiture, they are further saved from all wrong by the same Law, which provideth,

That they shall hold them well or quietly, and in peace, free from all unjust Tax, and from all Tallage, so as nothing shall be exacted nor taken, but their free service which by right they are bound to perform.

This is expounded in the Laws of H. 1. cap. 4. That no Tribute or Tax shall be taken, but what was due in the Confessor's time.

[Page 85] Under the word Tax is understood monetagium commune per civitates, or comitatus; so as aids and escuage are not included, for they are not charged upon Counties and Cities, but upon Tenures in Knight-service; nor was Dane gelt hereby taken away, for that was a Tax in the Con­fessor's time, and granted by Parliament.

So then the Norman Kings claimed no other right in the Lands and possessions of any of their Subjects, than under and by the Law or com­mon right; and they conclude the Law with a sicut, which I thus English, As it is enacted to them, (or agreed by them) and unto them by us given and granted by the Common-council of our whole Kingdom. Statutum est eis & illis à nobii datum & con­cessum per com­mune concili­um totius Re­gni Nostri. I leave the words to be criticized upon as the Reader shall please; being well assured, that the most strained sence can reach no further than to make it sound as an Estoppel or Conclusion to the King and his Successors to make any further claim unto the Estates of his Subjects than by Law or Right is warrantable; under which notion Conquest never did nor can come, as shall more fully be manifested hereafter. But the right genius of this Law will also more evidently appear by the practice of those times, which, even when Justice it self did most importune, so tenderly re­garded the liberty of mens Estates, that no Distress could issue with­out publick Warrant obtained; and upon three Complaints first made, Ll. Gulielm. c. 42, & 45. and right not done. And when Rape and Plunder was in the heat, and men might seem to have no more right than they had power to main­tain; yet even then this Law was refuge sufficient for such as were oppressed; Gloss. 227. Camb. Brit. Norsf. and was pleaded in bar against all usurpations and intrusi­ons under pretext of the Conquerour's right whatsoever; as by the Case of Edwyn of Sharneburn may appear. Secondly, the Freemen of England had vote in the making of Laws, by which meum and tuum was bounded and maintained, as may appear by what hath been al­ready said; nor shall I endeavour further therein. Thirdly, they had an influence upon the judicatory power: For first, the matter in fact was determined by the votes of the Freemen, as the laws of the Conquerour, and of Henry the first, do sufficiently manifest. Secondly, they had an influence in the making of the Sheriff, who, as well as the Bishop, was by Election of the people. Thirdly, Ll. Gulielm. c. 15. they had an influence upon all Judges, by setting a penal Law upon them in case of corruption; which if not so penal as to take away life, was nevertheless penal enough to make an unjust Judge to be a living pattern and example of misery, to teach o­thers to beware.

Two things more must be added, though somewhat collateral to this purpose. Concerning the right of the Freemen in the common Mint, and in their Villains. Concerning the Mint, Ll. Aethelst c. 6 that the Saxons having made it as parcel of the demesues of the Kingdom, Ll. Aetheldr. c. 22. and leaving to the King onely an overseership, reserved the controul and chief survey thereof to the Grand Council of the Kingdom, who had slated the same in the Confessour's time. But after him the Normans changed the current accor­ding to their own liking, till by Henry the first it was reduced into the an­cient course, Ll. Hen. 1. allowing no money but such as was currant in the days of the Confessour, whose Laws also (with some alterations by the Con­querour, with common advice) he also established. Concerning the Lords right to their Villains, it is observable, first, Ll. Gulielm. c. 65. & 66. that liberty of in­franchisement was allowed; which could never have been, had not the Liberty of the Subject been saved. Secondly, that Infranchisement properly is the work of the people, or the body; and the Lord was to [Page 86] deliver his villain by his right hand unto the Sheriff in full County-court, and pronounce him free from his Service; and shall make room for him by free passage and open doors, and deliver him free Arms, viz. a Lance and a Sword, and then he is made a Freeman, as I conceive, to all intents and purposes. Otherwise there might be manumission; as if the villain remained in a City, Ll. Gulielm. cap. 66. Borough, walled Town, or Castle, by a space of a year and a day, and no claim made to his service by his Lord, he shall be thenceforth free from the service of his Lord for ever: and yet this ma­numission could not conclude any but the Lord, and his Heirs or Assignes; nor could it enforce the body to allow that for a Member, which was none before. Thirdly, that notwithstanding they allowed the Lords liberty of infranchisement, Ll. Gulielm. 65. yet would they not allow them free liberty of disposing them as other Chattels: nor by the Law of the Conquerour might they sell their Villains out of the Countrey, or beyond Sea; for the King had right to the mediate service of every Villain, though the Lord had the im­mediate; and therefore that Law might hold in force: nevertheless the Ordinance that Anselm made, that no Lord should sell his Villain, they would never allow for a Law, nor did it hold in force.

CHAP. L. A recollection of certain Norman Laws concerning the Crown, in relation to those of the Saxons formerly mentioned.

I Call them Norman Laws, because they were allowed by them, or con­tinued in force, although many of them had their original from the Saxons.

One God must be worshipped, and one faith of Christ main­tained throughout the whole Kingdom. First and se­cond Com­mandments.

1 This is found amongst the Laws of the King William published by Mr. Selden, and was for substance in the Saxons time, Ll. Gulielm. cap. 51. saving that we find it not annexed to the Crown summarily until now; so as by this Law Heresie and Idolatry became Crown-pleas. And the like may be collected con­cerning Blasphemy, Ll. Hen. 1. c. 75. concerning which it is said, as of the Servant's killing his Lord, that it is impardonable: nor could any man offend herein, but it endangered his whole estate. The trial of these crimes is not found parti­cularly set forth. It might possibly be in the meeting of the Clergy, and possibly in the County-court of the Torne where the Bishop was present Jura divina edocere.

2 Peter-pence, Ciricksceat, and Tythes, must be duly paid.

These are all Saxon Laws united to the cognizance of the Crown, as formerly hath been shewed: Only the first William especially provided, that in case any man worth Thirty pence in Chattels did pay four pence for his part, Ll. Gulielm. 5. 18. &c. 20. it should be sufficient both for himself and his Retinue, whe­ther Servants or Retainers; Ll. Hen. 1. c. 10. and defaults in payment of these duties were finable to the King.

Invasion upon the right of Sanctuary fined. 3.

This I note, Ll. Gulielm. cap. 1. not so much in relation to any such Law amongst the Sax­ons, as to the future custom, which now began to alter, according to the increase or wane of the Moon. I do not find this misdemeanour to be formerly so much taken to heart by the Crown; nor possibly would it have been at this time, but that the King must protect the Church, if he mean to be protected by it: and it was taken kindly by the Church­men, till they found they were able enough to defend their own right by themselves. Amongst all the rest of Church-rights this one especi­ally is confirmed, viz. That any Delinquent shall have liberty of Sanctuary to enjoy both Life and Member, notwithstanding any Law to the contrary. This priviledge was claimed by the Canons; but it must be granted by the Temporal power, or else it could not be had; and though it be true that Kings formerly did by their Charters of foundation grant such pri­vileges in particular; yet could not such Grants create such immunities contrary unto, or notwithstanding any publick Law of the Kingdom; and therefore the Monasteries had their foundations confirmed by Parlia­ment, or general assembly of wise men, if the first foundation was not laid thereon.

Working upon the Feast-days punished by Fine. 4. Comman­dement.

Before this time no days for Solemn Worship of God were acknowledg­ed by the Law of the Kingdom but the Lord's days. Ll. Hen. 1. c. 10 By this all days ce­lebrated or instituted by the Church for that purpose are defended by the civil power, and breach of the holy observation of these days made en­quirable, and punished amongst other pleas of the Crown.

Breach of the Peace, Bloodshed, and Manslaughter, 6. Comman­dement. punished by Fine.

This was the ancient Law of the Saxons, and was continued without alteration till about Alfred's time, whose zeal against blood caused Mur­ther to be punished with death; but the Danes bringing in a moderation, if it may rightly be so called, are now seconded by their kindred the Normans, who will not admit of punishment by death, partly because being a war­like people, Ll. Gulielm. cap. 67. bloodshed might seem to rank itself under the Regiment of va­lour; and partly because they owed much to that Title for the possession of all that they had gotten in England. And to prevent scandal, entring upon the rear, opinion stept in, that a miserable life was more penal than death; and therefore in crimes of the deepest die, they came to fine and loss of Member: and which course prevailed most, Ibid. either to stop or enlarge the course of that sin, was left to the disposition of such as intended to make trial. But in matters of less malignancy, the purss rather smarted than the body, wherein they proceeded so far as to punishment of death by vio­lence; yet was not the fine to be measured by the judgment of the mer­cy or rigour of any person, Miror. 254. Ll. Gulielm. c. 8. 10, 12, 13, &c. but only of the Law itself, which set down in certainty both the nature and quantity of the fine; and left that me­morial upon record of a good mind at least to an equitable and just Go­vernment. In all these cases of breach of peace, the King's Court becomes possessed of the right of cognizance, and the peace is now cal­led [Page 88] the King's peace; Ll. Gulielm. cap. 3. not so much because that it is left only to his providen­tial care to maintain, as because the fines for most of those crimes per­tained to the King: for otherwise there is a sort of crimes that are contra pacem vicecomitis, as will be more cleared hereafter.

I shall conclude this subject with these three Observations: First, that the Laws in those ancient times of the Normans were so general, as they then made no difference between places or persons; but whether the peace was broken upon holy or common ground, Ll. Hen. 1. c. 10. or upon a Lay-man, or one in orders, the Lay-power seized upon all. The second is the care they had for apprehending of the offenders in this kind. If the party slain were a Norman or Frenchman, the Lord of the Manslayer was charged to have him forthcoming within a certain time, Ll. Gulielm. cap. 53. or pay the Kings Fine of 46 Marks, so long as he had wherewith to satisfie, and for what remained the whole Hundred was charged. But if the party slain were of any other people, the Hundred was immediately charged with the Manslayer, and must bring him to answer within a certain time, Ll. Gulielm. cap. 26. or pay the Kings fine. The third and last is, the care they had to prevent breach of peace for the fu­ture; first in setling of night-watches by all Cities, Burroughs, Castles, and Hundreds, in such manner as the Sheriff or chief Officers by Com­mon-council shall advise for the best safety of the Kingdom. Secondly, Ll. Gulielm. cap. 56. in forbidding entertainment of unknown persons above three days, Ll. Gulielm. cap. 46. with­out surety for their good abearance, Ll. Hen. 1. c. 8. or becoming their pledge for the publick safety, nor to let any persons pass away without testimony un­der the Ministers and Neighbours hand of their good carriage.

A Man committing Adultery with a Married Woman, 7. Comman­dement. shall for­feit to his Lord the price of his life.

This made the crime enquirable at the common-Law, as an offence 1 contra pacem Domini; but afterward it was sinable to the King, Ll. Gulielm. cap. 14. and enqui­rable amongst the pleas of the Crown by the Law of Henry the first. Ll. Hen. 1. c. 10.

Force upon a Woman, to the intent to Ravish her, is finable; 2 but if a Rape be committed, Ll. Gul. c. 19. it shall be punished with loss of Member.

The crime and offences against this Commandment were always puni­shed in the Temporal Courts, by Fine at the least; and are still in the Normans time prosecuted in the same way, notwithstanding the growing authority of the Canon.

Robbery is finable.

The different Law between the Saxons, 8. Comman­dement. 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, Ll. Gulielm. cap. 4. and so hath continued.

There shall be true weights and measures throughout the King­dom, Glanv. l. 6. c. 6. Hovedon. and those shall be sealed. 9. Comman­dement.

And this was the constant Saxon Law. Ll. Gulielm. c. 57.

Perjury to be punished by fine, and as formerly still inquirable amongst the Crown-pleas. Ll. H [...]n. 1. c. 10.

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 1 for the return of the Cattle, Ll. Gulielm. cap. 6. 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, 2 and so many defaults made; Ll. Gulielm. c. 42. 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 3 the presence of four Witnesses of the Town. Ll. Gulielm. c. 43. 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; 4 nor shall any thing forbidden be sold without Warranty. Ll. Gulielm. c. 60.

No Fairs or Markets shall be holden, but onely in Cities, Boroughs, Wall'd-Towns, 5 and Castles. Ibid. c. 61.

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 6 any makes claim and proof of them to be his, Ll. Gulielm. c. 7. 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. Ll. Gulielm. c. 36.

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, Ll. Hen. 1. 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 [Page 90] this restoreth the power of last Wills into it's place, an [...] 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, 1. Relief. M. Paris. An. 1100. & 1213. 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.

• 8 Horses sadled and bridled.
• 4 Helmets.
• 4 Coats of Mail.
• 4. Shields.
• 4 Spears.
• 4 Swords.
• 4 Chasers
• 1 Palfray
• bridled and sadled.

• [Page 91]4 Horses with Saddles and Bridles.
  Ibid. c. 23.
• 2 Helmets.
• 2 Coats of Mail.
• 2 Shields.
• 2 Spears.
• 2 Swords.
• 2 Chasers
• 1 Palfray
• bridled and sadled.

• His best Horse.
  Ibid. c. 24.
• 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; Ll. Gulielm. c. 29. 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, 2 Sister, Niece, or Kinswoman; and his Widow in like manner. Marriage.

The sence hereof in short is, that these might marry at their own will, without paying Fine or Composition to the Lord; and yet must have the liking of the Lord so far as to declare whether the man intended were his Enemy or not, and fit to perform Knight-service. This Law was therefore grounded upon the present distress of affairs, wherein the Na­tion was unsetled, and common right having established a mutual trust between Lord and Tenant, found out this means to preserve the same: for if the marriages of those that are related to the Tenant in such man­ner as may inherit part of all his Lands, or have joynture therein, should be left altogether at the liberty of the Tenant or his Widow▪ it must needs follow, that the mutual trust between Lord and Tenant must fail, and the publick receive damage. And therefore if this custom were of Norman birth, it was begotten upon a Saxon Law, and might the rather be owned by the English.

The Widow of the King's Tenant, having Children, shall have her Dower 3 and Portion so long as she keeps unmarried. Dower.

The portion here is in the Latine word maritagium, which I take to be the Marriage portion given by the Husband according to the Saxon custom, whenas the Dower in Land was not in use; whereof is spoken formerly in that Chapter of Dower. And the Normans were necessita­ted to introduce this custom of theirs with themselves, partly because it [Page 92] was a priviledge which was their own by birth, and it could not be wa­ved without an evident wrong done to the Wives of these men who had ventured their lives in that service; but principally because it would not consist with the work in hand to disclaim that custom which must needs be of infinite consequence in the effecting of what was principally sought after, viz. the union of the two peoples, Normans and Saxons, into one: I say, it was principally sought after by the Norman Conquerour, if not led thereto by his own genius, yet necessitated thereto by force of reason of State, as shall appear hereafter. And what could be imagined a more ready way to stay the effusion of bloud, and all other unhappy events of enmity, than by taking away enmity it self? or a more speedy and certain course for union, than to reduce the Men and Women of each peo­ple to mutual society, and to seal up all by a lasting bond of Marriage? or greater encouragement for the comfortable proceedings therein, than the setling of the constant maintenance of the Wife, in case of survivor­ship, by the Law of Dower of the Lands and Tenements of the Husband? Lindenburg. Concil. Aen­ham. c. 19. Ll. Edm. which was so full of contingencies and uncertainties in the portion of Goods that was by the Saxon Law appointed to the Wife in such case. Nor was this all; for by Marriage thus made to the Normans, they had a great hold, not so much over the English, as in the English; and that not onely during coverture, but by reason of this title of Dower, the Women be­came Tenants, and under the Lords wing, so as they durst not willingly and illegally offend their Lord in their Widowhood, nor by Law nor rea­son match themselves and their Dowry to any other that was not first al­lowed by the Lord to be in friendship with him: and thus became the Tenants Widows to be at the liking of the Lord for their marriage. And the like hereto may be said concerning the Husband in case of Tenant by the courtesie; Miror. fol. 20. and however by the Norman former practice it was much di­sturbed, yet by Henry the first it was again reduced to its former right, rather than original arising from his grant, as some hold, and proved ad­vantageous for the ends aforesaid. Now as touching their marriage-por­tion of Goods, because the Saxon Law had already endowed them thereof, they could not be induced to lay down their known ancient right, till they found the new Law of Dower to settle; and so for some time both Laws were in force, until the more ancient Saxon law had an honourable burial. Nevertheless for the present, the Law abridged that right so far as to li­mit it to the Widow during Widowhood, according to the former Saxon-law. Upon consideration of all which, it may well be conceived that the power of the Lords in consenting or dissenting to the marriages of their Tenants, Widows, and Wards, was not so much an usurpation upon the Common right of the English Subjects, as a custom rationally, and with great wisdom, as the course of affairs then stood, upholden and allowed amongst them, principally for the speedy setling of a peaceable Govern­ment, and consolidating of two Nations into one, and wherein England was then so happy as to come to a conclusion in seven years, which cost their Ancestors night Two hundred years experience with the Britains, besides a world of bloud-shed that might have been spared, e're they could find out the right way to a desired peace by mutual marriages had between them.

Such Widow shall have the custody of the Lands of such Children, cap. 4. or other­wise such other person as by right ought to have the same.

4 This is the first news of Wardships that passed abroad cum privilegio of a received Law, Wardship. which, together with the former, declare the right [Page 93] custom of the Normans, and thereby the injustas consuetudines quibus An­glioe regnum opprimebatur, M. Paris. viz. Arbitrary Relief taken of the Tenant's E­state, arbitrary Marriages made of their Peersons, and arbitrary Grants of Guardianship of their Lands: For as yet oppression was not so high-flown as to cast the government of the persons of their Wards out of the view of the Lords provisionary care, upon adventure of the next in Law, whe­ther man or woman, wise or unwise, under pretence to train him up in military service fit for the Lord's own safety, and the Kingdoms lifeguard: But it was the proper ground of the Lord's own seisure and right of Ward­ship, he being looked upon by the eye of common reason as the onely meet man that both could and would effect that work, so as might be most advantageous to the publick; which seemed to be chiefly concerned herein. And upon the same general ground the survey of fools accompa­nied the former, albeit it was not in practice till Henry the First brought it in, Ll. Canut. 37. as the Mirror of Justice saith (fol. 258.) yet it came upon an ancient foundation laid in the time of the Danes. For my own part, I will not di­spute the point whether this custom of Wardship was purely Norman, or whether it was derived from the Saxons anciently, who possibly might have some respect to Orphans, in such cases to train them up for the pub­lick service in point of War; especially being possessors of a known right of Relief, Asser. Menev. as well as Alfred the Saxon King did undertake the work for the training of some such particular persons in Learning for the service of the Publick, in time of peace and civil Government. Yet thus much appear­eth, that Guardianship of Lands was a known Custom, enough to make and maintain a right; and that it by Law was a right belonging to some persons before others; and that this had been a custom before the former unjust customs crept into the Government of the Conquerour, and prin­cipally of his Son Rufus. And though it be questionable whether it setled first upon the Normans or the English, yet it is manifest that if one people had it, the other people now coming into union with that people, could not in reason except against that custom which the other people had ta­ken up upon so honourable grounds as reason of State, which as the times then were, was evident and superlative; especially the customs being un­der the regulating of Law, and not of any Arbitrary power; and can be no Presidents of Relief, Marriage, and Wardship that after-ages usurped.

Tenants in Knight-service shall hold their Lands, cap. 5. &c. acquitted of all Tax­es, that they may be more able to provide Arms, and be more ready and fit for 5 the Kings service, and defence of the Kingdom. Acquittal.

This Law, whether it be a renewing of a former custom, or an introdu­ction of a new Law, it is clear it was upon an old ground: That Tenants by Knight-service must be ready for the service of their Lord, and defence of the Kingdom; whereof afterwards. But the Law is, that these men shall hold their Lands of that Tenure acquitted of all Taxes, though legal­ly imposed upon the body of the Kingdom, which must be conceived to be for the publick benefit, viz. either for the preparation or maintenance of publick War; for in such cases it hath been in all times held unreaso­nable, that those whose persons are employed to serve in the Wars, should hold Lands doubly charged to the same service, viz. to the defraying of their own private expences in the War, and maintenance of the publick charge of the same War besides.

CHAP. LIII. Of divers Laws made concerning the execution of Justice.

ALthough in proceedings in Cases of vindicative Justice Delinquents might seem to be left rather to the fury than mercy of the Law; yet so long as men are under the Law, and not without the Law, it hath been always held a part of Justice to extend what moderation might possi­bly stand with the honour of the Law; and that otherwise an over-rigid and fierce prosecution of the guilty, is no less tyranny than the prosecu­tion of the not-guilty: and although violence was the proper vice of these times, yet this point of honour must be given to the Normans, That their Sword had Eyes, and moved not altogether by Rage, but by Reason.

1 No Sentence shall pass but upon averment of the complaint by Accuser or Wit­nesses produced. Ll. Hen. 1. c. 5.

2 Fine and Pledges shall be according to the quantity of the offence.

By these two Laws of Henry the first, Ll. Hen. 1. M. Paris. the Subjects were delivered from three great oppressions. First, in making them offenders without Com­plaint or Witness. Secondly, in imposing immoderate Fines. Lastly, in urging extraordinary Bail.

3 Forfeiture of Felons Lands is reduced to a year and a day. Miror. fol. 261.

The Normans had reduced the Saxon law in this case unto their own Last, which stretched their desire as far as the estate would bear; but this being so prejudicial to the immediate Lords, who were no offenders in this case, and so contrary to the Saxon law, it was both done and undone in a short space by the allowance of Henry the first.

4 Intent of Criminal offences manifested by Act, punished by Fine or Mulct.

This by Alfred's Law was punished by Talioes Law, Miror. fol. 254. but now by a Law of Henry the first reduced to Mulcts.

5 Mainperners are not to be punished as Principals, unless they be parties or privies to the failing of the Principal.

This Law of Henry the first repealed the former Law of Canutus, Miror. fol. 141. which must be acknowledged to be rigorous, although not altogether without reason.

6 No person shall be imprisoned for committing of a mortal Crime, unless first he be attained by Verdict of Twelve men.

By imprisonment, Ll. Hen. 1. c. 5. is intended close imprisonment, or imprisonment without Bail or Mainprize; for otherwise it is apparent, that as well by the Saxon as Norman Laws, men were brought to Trial by restraint.

7 Appeals of Murder restrained within the fourth degree.

Before this Law, Miror. cap. 2. Sec. 7. Appeals were brought by any of the bloud or kin of the party slain: but now by Henry the first restrained. The ground seems to be, for that affection that runs with the bloud, grows so cold [Page 95] beyond the fourth degree, that the death of the party is of so small ac­count, as it can scarcely be reputed a loss of such consequence to the par­ty, as to expose the life or price of the life of the Manslayer unto the claim of such an one. And thus the Saxon law that gave the satisfaction in such case to the whole kinred, became limited to the fourth degree, as I conceive, from the Ecclesiastical constitution concerning marriage.

Two things more concerning juridical proceedings may be noted; the one concerning speedy course of Justice, wherein they may seem to ju­stifie the Saxon way; but could never attain to their pace, in regard they yielded so much time to Summons, Essoyns, &c. The other concerns election of Judges by the parties; for this we find in the Laws of Henry the first.

CHAP. LIV. Of the Militia during the Normans time.

THe power of Militia is either the Legislative or Executory power: the Legislative power without contradiction rested in the grand Council of the Kingdom, to whom it belonged to establish Laws for the government of the Kingdom in time of peace. And this will appear in the preparation for War, the levying of War, and managing thereof after it is levied. For the preparation, it consisteth in levying men and muni­tion, or of money. In all which questionless will be a difference between raising of War by a King to revenge a personal injury done to the King's own person, and a War raised by the whole Kingdom, or representative body thereof, which is commonly done in defence of publick interest, and seldom in any offensive way, unless in recovery of a right possession, ei­ther formerly lost, or as yet not fully setled. Now although it be true, that seldom do injuries reflect upon the King's person alone, but that the Kingdom will be concerned therein to endeavour a remedy; yet because it may fall out otherwise, and Kings have taken occasion to levy War of their own accord, in such case they could neither compel the persons of their Subjects or their Estates to be contributary. And of this nature I take the War levied by Harold against the Conquerour to be, wherein the greatest part of the Kingdom was never engaged, nor therefore did it feel the dint of the Conquerour's Sword at all; and in this case the Militia must be allowed to such as bear the purse: nor can it be concluded to be the Militia of the Kingdom, nor any part thereof, although the Kingdom may connive thereat. But to set this consideration aside, as not co-inci­dent at all with the Norman engagements after they were crowned, and to take all the subsequent Wars to be meerly defensive of the right of the Crown, as in sober construction they will appear to be: as touching the levying of money, 'tis evident that it lay onely in the power of the grand Council of the Kingdom; for otherwise the Laws were setled that no Tax should be made or taken but such as were due in the Confessor's time, as former­ly hath been shewed. Secondly, for the preparing of men and munition, it was done either by Tenure, or by special Law. As touching Tenure, it was provided by way of contract, that those that held by Knight-service should be ready with their Arms to assist the King for the defence of the Realm: So as they were not bound by their Tenure to aid him in any [Page 96] other cases. Ll. Gulielm. c. 57. Others were also by especial Law of the Land bound to be ready for their service in that kind: For all the Inhabitants of this King­dom held their Estates under a general service, which by common right they are bound to perform, viz. in time of danger to joyn in defence of their Country: Ll. Gulielm. cap. 59. This is the common Fealty or Allegiance which all men owe; and which if neglected or refused, renders the party guilty of Trea­son against his Country, and his Estate under the penalty of forfeiture, according to the old Saxon Law revived and declared by Henry the first. Ll. Hen. 1. c. 13. Thus the Law made preparation for the War, both of Men and Arms. Castles and Forts were likewise either first made by the order of the grand Council, or otherwise allowed by them, for the defence of the Commons and the Kingdom; Ll. Gulielm. cap. 61. so was the Law of William the first. The levying and managing of the War must not be denied de jure to belong to the repre­sentative body, so far as may consist with the directory part, for that it is a main part of the Government of the Kingdom in times of War: And therefore Henry the first, amongst his Laws made in the ordinary course of Law-making, provideth for the ordering of men in the Army in the field; and established a Law, that such as forsook their Colours or Associ­ates in the field, during the Battle, should be punished with death, and forfeiture of his whole Estate. Nor yet can it be denied but that de facto Kings of their own accord, and by secret Council, did direct therein; either in the vacancy of Parliament, which was the general case of the first times of the Norman Conquerour, and the whole Reign of William Rufus; or by connivance of the grand Council, while they saw nothing done but what was well done. Ll. Hen. 1. c, 13. Nor can it be rationally said that Kings by such advice as they have (in the recess of the grand Council) levy­ing War in defence of the publick according to rules, do otherwise than their duty; or if the grand Council look on, see nothing misgoverned, and say nothing, that they do other than is meet: For it must be remem­bred, that Kings in their first original were rather Officers for War than Peace; and so are holden by all Antiquity, and as Generals in War were called Reges or Imperatores, by the Grecians, Romans, and Germans. And at such times as War was concluded, at the general meeting of the people they chose their Dux or Rex, call him which you please; and he being chosen, all bound themselves to be at his command, and to defend his person. So as while a King keepeth within his place, in time of danger it is his duty first to stir himself, and stir up the rest; to lead them and order them, as may be most for the publick defence, and to govern the Army by such Laws as are or shall be established by order of the publick Meeting, and in case of sudden exigencies to use his own wits; and in all this is the common liberty no whit infringed, in regard that all is for the publick defence, to which the Knights are bound by their Tenures, and all others by the Law. And this was this Kingdoms case in the Normans time, that both Leaders and Souldiers, whether by election of the people, or prescription, yet all served for the defence of the Kingdom. Nor were they compellable to any other service inconsistent therewith, nor to stand to any judgement in such cases differing from, or contrary to that of the Parliament it self.

CHAP. LV. That the entry of the Normans into this Island, could not be by Conquest.

THat in point of fact, the entry of the Normans into England was not by Conquest, will sufficiently appear from what hath been al­ready noted. I shall make one step further, and shew, that as affairs then stood with the Conquerour, it was impossible for him to merit that name against the stream of Providence, that had pre-engaged him to three sorts of men, viz. the Normans, the Clergie, and the Commons of Eng­land.

It must be taken for a ground, that Duke William must give all fair correspondency to the Normans, considering they are Members of his own Body, and the Arm of his Strength, without which he could do no­thing. And it is not less certain, that however the Sea divided the two Countries, yet long before the arrival of the Army, M. West. An. 1072. Ll. Gulielm. cap. 55. the Normans and Saxons were so well acquainted by the latter access of the Danes, that part­ly by marriage and other interests, the Normans made so great a party in England, as that party merited no less from the Duke in his entrance, than those he brought with him: And therefore both they and their Allies in all reason must expect such reward of their faithfulness to him, as the o­ther had; nor could the Duke deny the same, unless he had disclaimed his own interests, whereof he had none to spare. Secondly, their merit from the Duke was accompanied with no less mutual relation to his Army, be­ing of the same blood with themselves, and of ancient acquaintance; and as impossible it was for the Duke to keep them from consociation with the mixed people, as to abstract the mixed people each from other; one or both of which must be done, and the Conquerours must be kept from incorporating with the conquered, or else the Law of Conquest cannot hold. Thirdly, if these two had failed, yet had the Duke by his manner of rewarding his Army, disabled himself from holding, however he might seem to have by conquest. Thus was his gift of Mannors, Lands, and Franchises unto his Souldiers, compleated with their ancient Rights and Priviledges in free service; otherwise it had been little better than a Trap to bring his own men into bondage, who lately were free Souldiers under no better than a Duke of their own election. And their Government in their own Country, however big, yet had not brought forth a Soveraignty into the World; their Duke no compleat King, nor themselves so mean as Vassals; and it was equally difficult for him to get up higher, as for them to stoop lower. And however, it was dangerous now for the Duke to try masteries, unless he meant to hazard all, and to change the substance for the shadow. Lastly, to lay them all aside, and to take the Nor­mans as in themselves considered, a People under such Laws and Customs as were the same with the Saxon, and originally in them, and from them derived into Normandy by Rollo, or some other; or take them as a People willing to lay aside their own Law, as some Writers affirm, and more willing to take up the Danish customs, which were also very nigh akin to theirs, and in part setled by the Danes in that part of the Kingdom where themselves most resided: It must be concluded, that a Government by [Page 98] Law was intended, and such a Law that was no way cross to the Funda­mental Laws of this Kingdom, but concurring therewith; in every of which regards, the future Generations may justly claim their Immunities as Successours and Heirs unto the Normans, albeit no Saxon could have enjoyed or derived the same to Posterity.

A second sort of men that made the King uncapable to hold by Con­quest, was the Clergie, a considerable part of the Kingdom in those days, whenas in every Nation they grew checkmate; and in this Kingdom had well-nigh the one half of the Knights fees, and thereby a principal part of the strength of the Kingdom, besides the Consciences of them all: and for a Reserve, they had the Pope in the rear, whose power in every King­dom was little inferiour to that of the King's own, and therefore sufficient to stop an absolute Conquest, unless the Clergie were first conquered. But the King came in upon great disadvantages in both these regards: for whereas his pretence upon his entry was to advance Justice principally to­ward the Clergie, who formerly were wronged by Harold, or voiced so to be; this bound him from Injustice and Oppression. And furthermore, the Pope had him in a double bond; one as Prince of the English Clergie, the other as Judge of the Title of the Crown by the King's own Election; and that by Sentence: for the King had merited of him, if not to hold the Crown it self by Fealty to the Roman See, yet by such services, as that the Tripple-Crown should be no loser. The King therefore must resolve to have no more to do with the Church than will stand with the Pope's li­king, unless he meaned to adventure himself and all he had into the danger of the great Curse, of which the King would seem more sensible than per­haps he was. Nor were those times of the Church so moderate, as to bring forth Church-men that would catch the good will of the Laity by conde­scention; or Popes of that height of perfection, as to part with one tittle of their great Titles, much less ought of that pitch of power which they had griped, though it would save the World from Ruine. In all which re­gards, the Norman Duke was too far inferiour to attain by Conquest any thing in this Kingdom, wherein the Pope or Clergie claimed ought to have or do.

A third sort of People avoided the dint of Conquest, either by timely siding with the Norman, or by constant resisting of him, or by neutrality. Of the first sort were many, both Lords and others, that by affinity and consanguinity were become English-men to the Norman use; Hovedon l. 6. others were purchased thereunto by the Clergie, that were zealous for the Pope's ho­nour, that was engaged in the Work. Of those likewise that were reso­lute in the defence of the Liberty of their Country, Ingulfus 512. there were not a few that purchased their Liberty, who otherwise might under pretence of Treachery have forfeited the same to the rapacious humour of the Con­querour. And this was not done onely by Valour; for Normandy stood in a tottering condition with their Duke, partly drawn away by the French, that feared the Duke would be too strong for them; and partly declining their own further aid, lest their Duke should be too great for the Dutchy. It was therefore wisdom in the Conquerour to settle the English aflairs in the fairest way, to gain them for himself, who had been so brave against him. But the greatest number, especially of the Commons, looked on while the game was playing, as contented with the cast of the Dice, whatever it should be. These were afterwards by the King looked upon, not as Enemies (as the president of Edwin of Sharneburn witnesseth sufficiently) but such as either were, Gloss. 217. or by fair carriage would be made [Page 99] his friends; and therefore he concluded them under a Law of assurance, that they that had been so peaceable, should have and enjoy their Lands as entirely and peaceably as they had formerly done before his entry. To conclude therefore this point; if these three parties of the English Nor­mans, the English Clergie, the stout English, and the peaceable English, be set aside from the Title of Conquest, it will be probable that not one tenth part of the Kingdom were ever under other change than of the Gover­nour's own person.

CHAP. LVI. A brief Survey of the sence of Writers concernign the point of Conquest.

THE clamours in story that the Conquerour altered and made Laws at pleasure, brought in new Customs, molested the Persons and Estates of the People with Depopulations, Extortions, and Oppressions, and others of that nature, have made latter times to conclude his Government to be (as of a Conquerour) meerly arbitrary, and that he did what he list. How dif­ferent this conclusion is from the intent of those Writers, I know not; but if the King's Title and Government was as a Conquerour, then was his Will the onely Law, and can administer no cause of complaint of wrong and oppression: and therefore if these be taken in nature of complaints, they declare plainly that there was a Law in Title, or else there could have been no transgression or cause to complain. But if the Reader shall apprehend these passages in Writers to be no other than sober Relations, then were it not amiss to consider from what sort of men these Complaints or Relations do proceed, viz. from Writers that have been cloystered men, little seen in affairs of State more than by common report and rumour; prejudiced by the King's displeasure against their Cloysters, and therefore apprehensive of matters in the saddest sence, and many times far beyond the truth, and might as well be supposed to mis-relate, as to mistake. For if we shall 1 touch upon particulars, I think no man will deny but the King allowed property indifferently, as well to Normans as English, if the premises be rightly considered: and therefore though somewhat be true of the plun­dering of houses of Religion, persecuting of the English Nobility, deposing of Bishops and Abbots, whereof they speak; yet all might be deservedly done in a legal way, and in execution of Justice, whereof Histories are not altogether silent. Nevertheless, if in the prosecution the King did shew a kind of rage, and some rashness, it might be imputed to the com­mon infirmity of great men: for as Oppression upon those that are infe­riour, makes them mad, so doth Treachery against them that are superiour make them little other; especially if they be overtaken with a fit of pas­sion in the instant, or their minds wrapped into a whirlpool of affairs.

But the change of Laws makes the greater noise; wherein what change 2 they suffered, may appear from the premises, if Writers have dealt up­rightly; otherwise general imputations without particular instances, will never sway Opinion contrary to the current of the Laws that are published; especially seeing we have observed the errour of the best Historian of those [Page 100] times, in calling those things new, which were anciently used in England, before Normandy was in a condition of a State. Yet if this should be gran­ted, and that there were such change of Laws as is pretended, it makes no­thing to the point of Conquest, so long as the new Laws are made by ad­vice of Common-council, and for the common good; and so long as they are established to be Rules for Government. I remember it is affirmed by some of those ancient Writers, That the Duke or King would have brought in the Customs of Norway, but the earnest Mediation of the En­glish prevailed against it: and this evinceth two things to my opinion: First, that there was question made what Law should be established. Se­condly, that notwithstanding the interest that the Normans had in the Kingdom, they could not prevail to bring in the whole body of their Law, or of the Customs of Norway; which were not onely the prima materia of their Law, but also in kind had a setling at that very time in those pla­ces of this Kingdom where the Danes had their principal seat: and there­fore not altogether strange to the Saxons themselves. The sum of which will be this, That upon debate a Law must be setled, and that not the Law of the Conquerour's own Will, nor the Law that suits with his De­sire; but the ancient Law of the Kingdom: And therefore if at any time the unquietness of some of the English brought the King to some thoughts of Arbitrary Rule, and to shake off the clog of the Saxon Law, it was long e're it stirred, and sprang up too late to raise the Title of Conquest, and withered too soon to settle it.

As touching the change of Customs (for that also is imputed to the Con­querour) it cannot be denied but some alteration might be in matters of smaller consideration; yet are the Writers not without mistake in the particular instances: For whereas they tell us that the Conquerour took away the custom of Gavel-kind, and brought the custom of discent to the eldest Son; and that Kent saved their Liberties, and continued this custom of Gavel-kind: I shall not contend about the Liberties of Kent, but must, till I see better reason, hold the opinion of the change of Inheritance to be a meer conceit. For (besides what hath been already said concerning that custom of Gavel kind) if we believe Glanvil, the difference was between Lands holden by Knight's-service, and in Socage; the first of which in his time, Lib. 7. cap. 3. by ancient custom, always descended to the eldest: and those Lands that were holden in Socage (if not partible by custom, in which case they went equally to all the Sons) went by custom in some places to the eldest, in other places to the youngest; so as the Rule of Inheritance in the Nor­man times was custom, as well as in former times. And furthermore, if the custom of Gavel-kind had been the general custom of this Nation, the King by his change had contradicted his own Prerogative, and granted as great a Liberty to his Subjects as could have been invented: For had the custom of Gavel-kind happened upon the Lands in Knight-service, it had brought all the Sons under the Law of Wardship, and had made a ready way to enthral all men of Worth, and undo all Husbandry; the first whereof had been as advantageous to the King's private interest, as both destructive to the publick.

Nor is it clear from any Author of credit, that the Normans changed the 3 Tenures of Lands; albeit that it cannot be denied but such Lands as he had by forfeiture, or otherwise, were in his own power to dispose upon what Tenure he pleased: for as well before the Normans time, as long af­ter, Tenures were like as the Services were, all at the Will of the Donor; and were of as many Individuals almost as the minds of the Owners. [Page 101] Some being of more general regard and publick use, are recorded amongst the grounds of English Laws; Littlet. none of which appear to me to be of Nor­man original, although they received their names according to that Dialect.

The next thing objected, is the change of Language; which thing, some 4 Writers tell us, the King endeavoured; or which is worse, to be so abso­lute, as to be absolute Tyrant, and to publish Laws in a foreign Language, that the people through ignorance might the rather transgress, and there­by forfeit their Estates. This (if true) so sar differed from the nature of a Conquerour, as rather proveth that he was put to his shifts. Neverthe­less, the thing tasteth so much of Spleen, as it might occasion distrust of other relations concerning this subject. For besides that it is nonsence for a Conqueror to entitle himself by a cheat, where he hath an elder Title by Conquest; I shall in full answer to that calumny, insert a passage of an Hi­storian that was in the continual view of publick affairs in those times, who speaking of the Conqueror, Ingulfus. saith, That he commended the Confessor's Laws to his Justices, in the same Language wherein they were wont formerly to be written, lest through ignorance the people might rashly offend. And a­nother Author saith, M. Paris. fragm. Gulielm. That the King had a desire to learn the English Tongue, that he might the better know their Law, and judge according thereto. It is probable nevertheless, that the Laws were in the Norman Tongue; and it is no less likely that the Pleadings, in real Actions especially, were also in the same Language; else must the Normans be put to School to learn En­glish, upon peril of loss of their Estates. But that either the written Laws were wholly concluded into the Norman Tongue, or that the publick plea­ding of Causes by word of mouth in all Actions where the issue was left to the Country, were in any other Language than English, no advised Reader will conceive: seeing it had been a madness for an English Jury to pass their Verdict in any case wherein it is likely many of them under­stood scarce a syllable of the Norman Language, much less ought of the matter upon which their Verdict should be grounded. Adde hereunto, that it is not likely but the Conquerour inhibited the use of the English Language in all matters of publick Record, inasmuch as the Charters made by him to corporate Towns and Franchises, were sometimes in the Saxon, more generally in the Latine, but seldom or never in the Norman Dialect; and that Pleadings and Indictments were entred in like manner in the Latine Tongue, as formerly by an old custom brought in by the Clergie was used: for the Clergie, who had gotten the Key of Know­ledge and Law into their own custody, laid it up it that Language whereof the Commons had little knowledge, that they might thereby be enforced to depend upon these men for Justice, as well as for Piety. The Normans therefore either found it too hard to alter the former custom in such cases, or else thought it the wisest way to chuse the Latine as a third Language, indifferent as well to the Normans as Saxons, and best under­stood of any foreign Tongue besides: and yet endeavoured to bring both Peoples into one Language, as they were intended to be one People; and to press the use of the Norman Tongue in publick affairs, so far as might consist with good Government and Justice, leaving time and occasion to work the issue; which doubtless was much, and had been more, had the Nor­man Race continued in the Throne. But falling out otherwise, the English bloud prevailed in the head, and the Language continued possession, mixed onely with some Norman words, as the people also were a mixed people: So as the Language was not changed, though it was altered.

[Page 102] 5 Lastly, it is affirmed, that the Normans did impose a new custom called Coverfeu; and it is thought by some to be a meer Vassalage, that every man at the noise of the Bell every night, must put out both Fire and Can­dle; and yet it is a matter of so small concernment, that (being in its own nature convenient) Scotland received it without such coercion: and it can be reputed for no other than a seasonable advice, which any Corpo­ration in time of danger might order within their own Precinct, without transgressing the Liberty of the Subjects. Of less consequence is that change, which is alledged was brought in by the Normans in the sealing of Deeds of Conveyance, by setting a print upon Wax annexed to the Deed, which formerly was wont to be by setting a print upon the blank at the end of the Deed; and yet it is looked upon by some as a Trophy 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, Laws, Tenures, Lan­guage, and some Customs, we come to that which is the main occasion of all these Complaints; I mean, unlawful Taxes, Afforrestings, 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) were under continual occasion of Expence, many Wars, 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 out-reach their bounds, and sit heavie on the People: and in such occasions no man escaped, Norman nor English, Cler­gie-man nor Lay-man; 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 do them right, they were not always 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 forbear to require that which he had some colour to demand: For whereas the Dane-guelt was left unto him in the nature of an Annuity, he was contented to turn it into a sum in gross, 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 Pens of angry Writers; and where they fail, 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 avoid 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 successours, than 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 keep 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 Advertisement: That [Page 103] notwithstanding the words Conquerour and Conquest have often fallen from my Pen, and hereafter may do the like; yet can I see no reason why di­vers succeeding Kings, coming to the Crown by argument of the Sword, and not by right of Descent, may not deserve the Laurel 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 Reigns of Steven, Henry the 2. Richard the 1. and John. And first of their Titles to the Crown, and dispositions in Government.

I Have cut out this Portion of One hundred twenty and five years (containing the Reigns of these Kings) apart from their Successours, in regard of their Titles; all of them being under one general Climate, and breathing one air of Election and Compact between them and the Peo­ple. Now was the Issue male of the Stock of Normandy quite wasted▪ I mean, 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 hap­piness 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. Steven. Onely King Steven, like an unruly Ghost, coming 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 Father's life-time acknowledged to be his Heir, the Sea having formerly swallowed up the remainder of his hope: Unto her the Lords sware Fealty, as to the next Successour 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 precedent, himself coming to the same by Election of the People, contrary to the Title of his Brother Robert. Ne­vertheless, this was not the first time that the English Crown refused to be worn by practice; for Henry the first being dead, Steven, the younger Son to a younger Sister of Henry the first, put up head; who being of the Royal Stem, a Man, and a brave Souldier, by the ancient course of the Saxons, had Title enough to be thought upon in a doubtful Succes­sion. Besides, he was a rich man, and had enough to raise up his thoughts to high undertakings; had a Brother a Bishop and Legate to the Pope here in England, one who was of a high spirit, and vast power; advan­tages enough to have quickned a much duller spirit than his was, who was a Son of a Daughter to William the Conquerour. And to make him yet more bold, he had the upper ground of the Heir, who was a woman, disadvantaged by a whispering of wilfulness, and customary Go­vernment like an Empress: which was too high a sail for an English bot­tom, wherein so precious a Treasure as the Subjects Liberties was to be shipped. Thus provided, Steven stepped up to the English Throne, and with protestations of good Government, entred, and made up the match both for Crown and Scepter, the People waving the Title both of Empress [Page 104] and Heir. The pretensions of the E. of Bloys elder Brother to Steven, gave way to the common Law and Liberties of the Subject, to fasten, root, and gather strength, after the violence of the Norman blasts was out of breath; thus making way over Hedge and Ditch of all Oaths, till the King was quietly setled in the Throne.

Quietly, said I? that I must retract; for he never had quiet during his life, though generally he was victorious, and did as much as a King could do, that had the passions of a man and Souldier, to give the Subjects con­tent. The true cause whereof, was an errour in the tying of the Knot, wherein he neither became theirs, nor they his; for the Fealty that was sworn to him, was but conditional, and eousque: and yet the King's pro­mises were absolute, and better observed than the Peoples were, possibly because his Engagements were more. For besides his Protestations, the King pledged his Brother the Legate to the people, and mortgaged him­self to his Brother; and to boot, gave both to the Clergie and Barons li­berty to build and hold Castles for their private security: The issue where­of may remind, that too much countersecurity from the King to the peo­ple, is like so many Covenants in Marriage, that make room for jealousie, and are but seeds of an unquiet life. And thus it befel this King's Reign. His first troubles are brought in by Historians, as if they dropped from Heaven, yet probably came immediately from without, viz. from beyond Sea, where the Empress was: for as the King's Engagements were in their first heat on the one side, so was also the Empress's Choler on the other side; and therefore might make the first assault. And the King's first suc­cess therein falling out prosperously for him, gave him a conceit that he was strong enough to encounter his own Covenant, although in truth he invaded but the skirts thereof; I mean, that collateral security of Castles: for by experience he now feels that they are blocks in his way, he must therefore have them into his own power. But the Clergie (loth to for­go their pawn till they had their full Bargain; for now they were working hard for investitures of the Mitred Clergie, under the patronage of a Le­gate that had the King in bonds) acted their parts so well, as they enga­ged the Nobility for their liberty of Castles; in which Atchievement the King was taken prisoner. The Empress betakes her self to the Clergie, and by the Legate's means, procures a kind of Election to be Queen: But she sick of the Womans humour, and thinking too much of the Empress, and too little of the Queen, and forgetting that the English Crown would not fit an Empress, unless she could fit her head first to it, choaked her own Title by Prerogative, and so let the Crown slip through her own hands; which fell upon the head of Steven again, who maintained it by his Sword, after by Composition, and then died a King. And thus like a Vapour moun­ted up by the Clergie, tossed by Tempests for a time, and at length falling, he gave way to the Crown to have its free course to the Empress's Son by Geoffery Plantagenet.

This was Henry the second, Henry 2d. the most accomplished for Wisdom, Cou­rage, and Power, of all his Predecessors; and one that wanted nothing but purpose, to have undone what the foregoing Princes had done, in the setling of the Liberties of the People: for the Subjects were tired with the unquiet former times, and the Clergie in distraction through the Schism in the Popedom between Victor the fourth, and Alexander the third; and very unfitting all were to dispute the point of Prerogative with so mighty a Prince. And it was the wisdom of God to order his affairs [Page 105] so, as that he was not very fit to dispute with the people in that case: for his Title to the Crown was not very excellent, being neither Heir to the last King that Reigned, nor to the last of that Title, I mean to Henry the first; but Son only to the Empress, who was now alive, and by descent was to be preferred before all other. His Title therefore is clearly by com­pact and agreement made between the Lords, King Steven, and himself; all being then ready to try the right by the Sword, to that, to which none of them had any right at all at that time, but by the favour of the people. Nor did the King ever after dispute the strength of this Title, although before he died, his Mothers death conveyed over to him what right of descent soever was consistent with the Law of the Crown: nor did occa­sion favour him thereto; for as it is never seen that any man is honoured by God with many advantages, without proportionable employment for the same, so it befel with this King: His great Territories in France brought jealousie in the rear; and thence strife and contention with France, enough to turn his thoughts from waxing wanton against his own people; and therefore his wisdom taught him to prefer peace at home to the chief of his Prerogative; to become somewhat popular, and yet to lose nothing of a King thereby. His way was to keep the Church-men down, that had during his predecessors time grown, whether more obstinate against the King, or insolent over the people, is hard to judge; and in this he had the people to friend, and might have prevailed much more than he did, but that the people feared the threats of Rome more than he; and he (if not guilty of Becket's death) more the conceit of Fame than there was cause. These concurring with unnatural troubles from most unthankful Sons, made that spirit of his to fail, that formerly knew no peer; as it is often seen that the most generous spirits are sooner quelled with shame and grief, than with fear of any danger whatsoever. Towards his Lay-Subjects he was more regardant for the setling of Laws, and executing of Justice; so as some have thought him the first source of our English Laws; others more truly, the first Mecaenas since the Conquest, that brought on the spring-time of a setled Common-wealth; and therefore left this fair testimony, by his putting forth that Primrose of English Laws, under the name of Glanvil; letting all men know, that thenceforth England would no more veil itself in an unknown Law, but explain itself unto the World to be a regular Government. Such was the King's Idea; yet was he touched with so much of the common infirmity of Kings, as shewed him to be a man; especially in his old age, being loaden with Military Affairs, wherein he had been long exercised, he had contracted some shifting courses of a Souldier, in gathering Money and Souldiers somewhat out of the road­way of an English King; and led an ill example to future Ages; nor had he other salve for this wound, Hoveden. 348. but that it was for the honour of Christian faith, and for the sake of Jerusalem.

Next comes in Richard the first, Henry the Second's Son both in birth and courage; Richard the First. yet was his behaviour to his Father such, that his merito­rious Holy War could never wipe it out of the Calendar of story. His entrance was upon an Election made in his Fathers life-time, and the same confirmed by receiving of Homage from the Peers. The sad troubles that this Election amongst other things occasioned to his Father in his old age, shew plainly that Richard trusted not to the Title of Inheritance; M. Paris. nor the French King (that took his part) unto the English custom, for the possession of the Crown, but all must be done in the Life of the Father; [Page 106] that must secure the Government to the Son when the Father is dead. And thus is he entred upon the Throne, not as Heir, but as Successor to his Father, yea rather as Survivor, taking possession of what was by spe­cial compact conveyed to him by the means of his Father in his life-time, though sore against his will, if Writers speak true. As his entrance was, it promised a better Government than followed; for though it was for the most part hidden in the Womb, as himself did subsist in another World; yet by a secret providence he was given over to the election of ill Deputies; and therefore he was not well beloved, however dear he was to this Nation. A third part of his Government was spent in a calm with Pope, Clergy, Commons, and all Nations that were not Infidels, upon conscience it seems that he ought not to be troubled, who adventured his person so bravely in the Holy War. But above all, he was the Clergies dar­ling, not only for his adventure in the Holy Land, but now much more in his return by his imprisonment in Germany; and therefore they sluck close to him in his absence, not only in maintenance of his right to the C [...]own (whereto some made claim, and his own Brother John did more) but emptied themselves to the utmost for his delivery, which they effect­ed, to the envy of the French, and such as longed for his downfal here in England. The King comes like the Sun-rising, scattering his Brothers de­signs by his very view; then returns his thoughts for France, where he spent the rest of a restless life: and as his entry upon the Throne was un­natural (for he made his way upon his Fathers Herse) so was his Reign full of troubles, and his end not unlike; for it was violent, and by the hand of his own subject; and so ended his Reign, that scarce had any begin­ing.

Next comes in King John to act his part, John. according to his entry, hand over head; whether called by a people scared with the noise of Successi­on by inheritance; or such as thought it not convenient nor safe in a stirring time to have a Child to be their King; or lastly, led by an inte­rest that John the youngest Son of Henry the second had by woful ex­perience obtained amongst the Lords, or some or all concurring; it is clear, they crossed the way of inheritance, waved Arthur's Title, who was Heir to Richard the first, and by him also appointed to succeed, be­ing then but a Child; and they chose John, a man of War, trained up in the Government of Ireland, which made way for his active spirit; and well seen in the Government of England, which might have made him wise; and under these conceits they were willing to forget his oppression in Ireland, his Treachery against his Lord and King in England, set the Crown upon his head; and in conclusion acted the Tragedy of Abime­lech in English, wherein the Cedar was rooted up, and the Bramble trod­den down.

The general temper of his Government sheweth, that though the King must be thought sober, yet the man was mad, for he hawked at all manner of game, France, Scotland, England, Laity, Clergy, spared not the Pope himself, scorned to stoop to occasion; all which he did by the strength of the name of a King: till at length, being well cuft and plumed, he was fain to yoke his lawless will under the grand Charter, depose his Crown at the Popes foot, and instead of a King, became little better than a chief Lord in England. Thus although Richard the First forgot this mans disloyalty, yet God remembred it: for the King having gotten the Pope upon the hip, and put him to his last shift to stir up [Page 107] the French to set his curse on work, was by a hidden providence conque­red in the middest of a Royal Army, without view of Enemy, or other weapon than a meer noise; his Nobility (either suspecting all would be gone to Rome, or expecting that the King would not deny them their own, seeing he had been so profuse in giving away that which was not his) demand that their Liberties might be confirmed; but he being loath to be mated by his Nobles, though he was overmatched by the Pope, arms himself with the Popes curse, and the Lords themselves with the Frenchmens power; thus the Tables are turned, and the French play­ing an after-game to gain to themselves the Crown of England, after they saw the death of a Warlike King, discovered their design before it was ripe; and in the conclusion were beaten out of the Kingdom by a Child.

It is not worth inquiry what the King allowed or disallowed; for it was his course to repent of any thing done contrary to his present sense, and made it his chief principle in policy to have no principle but desire; wherein he triumphed too long, by reason of the contentions between the Clergie and the Laity; which coming nigh unto the push of pike, and the King ready for the spoil of both; the Barons and Clergy suddenly close their files, and like a stone-wall stood firm to each other, till the King wearied with succesless labour, was glad to give and take breath, confirm­ed the Liberties of the people by his Charter, which is now called the Magna Charta, M. Paris. An. 1215. for substance, and gave such collateral security for per­formance on his part, as did let the World know the thing was as just, as himself had been unjust. The worst point in the case was, that the people got their own by a kind of re disseisin; a desperate remedy for a despe­rate condition, wherein the Common-wealth then lay between life and death, upon the rack of the will of a King, that would be con­trouled by nothing but his own appetite, and was in the end devour­ed by it.

CHAP. LVIII. Of the state of the Nobility of England from the Conquest, and during the Reign of these several Kings.

UNder the Title of the Nobility of England, I shall comprehend all such as are of the greatest eminency for birth, or wisdom and learning, and advancement into place of Government and Honour. These were in the Saxons times the flower of the people, flourishing only from the honour that ascended from beneath; their deportment then was full of chear and safety to the people: after that Royalty sprung up, the influence thereof upon them exhaled such a reciprocal interest back again, as made them less regardful of their own root; whereas we see the more mature flowers are the more propense to turn head and look downward to their own original. This distemper was yet much worse by the coming in of the Normans, whose Nobility, besides their Titles of honour in their own Countrey, obtained by custom such command and power amongst the meaner sort, being Souldiers under them in time of the service in the field, that (when the Wars had breathed out [Page 108] their last) neither of them could forget, or were very careful to lay a­side. This was observed by Kings, and advantage espyed to climb to the top of Monarchy by the help of these great men; whom if they could make their own, all would be theirs; and therein they had prevailed much more than they did, if they had been wise enough to have main­tained them in unity; but in that failing, the Kings were necessitated to take parties, and serve the Nobility to save the main: and thus continu­ed they a considerable party in the Government of this Kingdom from the Normans, for the space of two hundred years well-nigh, to the prejudice both of the growth of the Prerogative of Kings, and Liberties of the Commons; and benefit of none but the Lords, who in those unquiet times were the chief Commanders in the field. This errour of the Kings was soon espied, but could not be avoided: it is natural to man to be proud, and to such to fall into contention; another course therefore is taken, viz. to raise up some so high as may over-top all, and keep them under: nor is it altogether without reason, for Kings are no ubiquita­ries, and some must bear their power where they cannot be personally present; yet it is dangerous to bestow too much upon one man, for there is no man fitting to be a King, but himself that is a King; and where Kings are immoderate in bestowing power, it many times works much woe to the people, and not seldom sorrow to the Kings themselves. The place of the chief Justice was in shew but one Office, yet in these times was in nature of the Kings Lieutenant-general throughout the Kingdom. A power and work too great for any one man in the World, that can make no Deputies to manage it; and yet in those times you shall meet with one man made up of an Arch-bishop, a Legat, and chief Justice of England; Hoveden. 443. 375. Nubr. lib. 4. cap. 14. or a Bishop, a Lord Chancellour, a Legat, and chief Justice of England: and a strange kind of Government must that needs be, where­in the Servants Throne is above his Masters, and a Subject shall have a plenitudinary power beyond that which his Lord and King had, or, as the times then were, was capable of. By these and such like pluralities, the great men of England kept the Commons below, and themselves above; and probably rendred the temper of the Government of this Kingdom more Aristocratical than in after-Ages. And if their personal authority was of such value, how much rather in their joynt assembly or court of Council! concerning which I must agree, that as in their original in Ger­many, they did consult and determine of the meaner matters, that is to say, of matters concerning Property; and therefore were in their most ordi­nary work Meetings of Judges, or Courts of Judicature, and also mat­ters of defensive War, because themselves were the Commanders: and lastly, in matters of sudden concerment to the State, not only to serve as eyes to foresee, but to provide also if they can, or otherwise to call in the ayd of the peoples advice; so also they continued this course, and it may be now and then (as all Councils have done) strained their endeavours beyond their reach, especially since the Normans entrance: and therefore I shall not deny but that they alone with the King, and without the Com­mons, have made many Laws and Constitutions, some of which now are called Statutes, (although many of them in truth are no other than Rules for Judicature, which ordinary Courts may frame; or Judgments in particular cases, such as are the constitutions at Clarindon in Henry the Se­cond's time) and many other Laws which are reported to be made between the King and his Lords. Nor can I look upon such Laws otherwise, than as upon Judgments in Courts of Justice in new [Page 109] points of controversie, grounded upon ancient grounds, which properly are not new Laws, but the ancient Rule applied to new particulars; and being so published to the World, may bear the name of Laws, Ordinances, Constitutions, or Judgments; the word Statute being of latter times ta­ken up, and used in a more restrictive sence: of which, more in their due place. Now that this Court was a setled Court of Judicature, and so used, may appear, Hoveden. An. 1175. in that Fines were levied therein, and Writs of Right deter­mined; as in the great Case between the two Kings of Navar and Castilè, referred to the Judgment of Henry the second, Ibid. and tried in this Court, it is said, that the Tryal was by Plea, and if need were, by Battel. The Judges in this Court were the Baronage of England; for the entry of Judgment in that great Case, is thus: Comites & Barones Regalis Curiae Angliae adjudicaverunt, &c. So as though doubtless many were absent, some being enemies, others discontented, others upon other occasions; yet all might claim their Votes as Barons. The President over all the rest was the Chief Justice, as if the King were present then himself; and by him was the Sentence or Judgment declared, according to the entry in that Case aforesaid, Habito Concilio cum Episcopis, Comitibus & Baronibus, adjudicavimus, &c. The honour of this Court was great, so long as the Lords had liberty or care to attend thereon: but when Kings began to have private interests, they would have these to be more private Councils; which weakned the esteem of Conclusions that there passed, and reduced the honour thereof scarce to the degree of a Conventicle. And by this means the necessity of calling together the whole Body-Representative, was made more frequent, the power of the Nobility of England decayed, and this Court forfeited all its Juridical power to the three Courts at West­minster, viz. the Kings-bench, Common-pleas, and Exchequer; saving still the supreme Judicature unto the grand Convention of Estates in Parliament, where all the Lords had liberty of meeting, and free voting without im­peachment.

CHAP. LIX. Of the state of the Clergie, and their power in this Kingdom from the Normans time.

IF the Prerogative of Kings prevailed not to its utmost pitch during the Normans time, it did much less in these times succeeding, wherein the Clergie took up the Bùcklers, and beat both King and Commons to a Re­treat; themselves in the interim remaining sole Triumphers in the Field. In their first Adventure they paced the Stage, no man appearing to oppose: Steven then was King by their leave, and their Bond-servant; and they might have any thing, sobeit they would suffer him to enjoy his Crown. His Brother the Bishop was the Pope's servant, the Church-mens patron, and the King's surety; in whom the Clergies favour to the King, and his good behaviour toward them and all men, concentred. Besides all this, the King was but so upon condition; and there being no better Title than Election, Conscience in those times was well enough satisfied in the breach of Covenant on their part, when on the King's part it was first broken. All this the King saw full well; and therefore what can he deny to such Benefactors? Vacancies of Churches he readily parts with; [Page 110] and his right of investiture of the Mitred Clergie he dispensed: so as he open'd the way to his Successours of an utter dereliction of that Priviledge. He sees his Brother the Legate deflower the Crown of England, by main­taining Appeals from the Courts in England unto the Court of Rome, and he says nothing; he is contented with the stump of the Crown and (with Saul) if he be but honoured above or before all others of the people, it is enough: But the Clergie, like the barren Womb, hath not yet enough. The King hath allowed them Castles; and too late he sees, that instead of being Defences against the Imperial power of the Empress, they are now made Bulwarks against the lawful power of a King: he had therefore endeavoured to get them down, and gotten some of them into his power. The King himself is now summoned to answer this before a Legatine Council, wherein his Brother is President: That was a bold ad­venture in them; but it was extreme rashness in him to appear and plead the Cause of the Crown of England before a Conventicle of his own Sub­jects. And thus to secure Rome of Supremacy in Appeals, he suffers a recovery thereof against his own person in a Court of Record; and so loses himself, to save the Crown. Thus are Synods mounted up on Eagles wings; they have the King under them, they will next have the Crown. Within a while Steven is taken prisoner: The Empress percei­ving the power of the Clergie, betakes her case to them now assembled in Synod; they now proud of the occasion (and conceiting that both Law and Gospel were now under their decree) publish, That the Election of the King belongeth unto them; and by them the Empress is elected Queen in open Synod, Steven's Brother leading the game: and had she been as willing to have admitted of the Laws as Steven was, she had so continued, and had left a strange President in the English Government for Posterity. But the Citizens of London, who had made the way to the Throne for Steven, reduced the Synod to sober consideration, and helped the King's return unto his Throne again; wherein he continued a friend to the Cler­gie during the rest of his time.

Henry the second succeeded him: as brave a man as he, but beyond him in Title and Power; and one that came to the Crown without pre­engagement by Promise or Covenant, saving that which was proper for a King. A man he was that knew full well the Interests in the Govern­ment, the growing power of the Clergie, and the advantages lost from the Crown by his Predecessor: And to regain these, he smooths his way towards these braving men, M. Paris. An. 1155. speaks fair, profers fair; he would act to in­crease the bounds of the Church: He would have the Pope's leave to do him a kindness; and sobeit he might gain an interest in Ireland, he would take it from the Pope, who pretended, as Heir of Jesus Christ, to have the Islands and utmost parts of the Earth for his possession; and, as if he meaned to be as good to the Church as Steven was, and much bet­ter, he desires the Pope's kindness for the confirmation of the Liberties and Customs of his Crown and Kingdom; and no sooner desired than obtai­ned. This was a second Example of a King of England, but the first of an English King, that sought to Rome for Right in the Crown; and there­by taught the Pope to demand it as a priviledge belonging to the Tripple. Crown. Nor was Henry the second less benign to the Church-men, till he found by his dear-bought experience that he had nourished Scorpions; and would have suppressed them, but was rather suppressed himself; as in that shameful success of the death of Becket may appear, wherein he yielded the day up to the Clergie, who formerly scorned to stoop to the [Page 111] greatest Potentate on Earth. The State of Kings is to be pitied, who must maintain a politick affection above, and sometimes against Nature it self, if they will escape the note of Tyranny in their Undertakings, Constit. at Clarindon. and of a feeble Spirit in their Sufferings: For the King having made Becket Chancellor of England, and then Archbishop of Canterbury, he became so great, that his Feathers brushed against the King's Crown; who begins to rouse up himself to maintain his Honour and Prerogative Royal. The Bishops side with Becket: the King intending the Person, and not the Calling, singles out the Archbishop, and hunts him to soil at Rome; yet before he went, the King puts the points of his Quarrel in Writing, and made both Archbishop and Bishops signe them as the Rights of his Crown, and as the Consuetudines Avitae: But Becket repenting, went to Rome and obtained the Pope's pardon and blessing, the rest of the Bishops yielding the Cause.

The particulars in debate were set down in the nature of Laws or Con­stitutions, commonly called the Constitutions at Clarindon; which shew the prevailing humour that then over-spread the body of the Clergie in those days: and therefore I shall sum them up as follows.

Rights of Advowsons shall be determined in the King's Court. cap. 1.

This had been quarrelled from the first Normans time, but could never be recovered by the Clergie. Before the Normans time, the County-courts had them, and there they were determined before the Bishop and Sheriff; but the Ecclesiastical Causes being reduced to Ecclesiastical Courts, and the Sheriff and the Laity sequestred from intermeddling, the Normans, ac­cording to the custom in their own Country, reduced also the tryal of rights of Advowsons unto the Supreme Courts: partly because the King's Title was much concerned therein, and the Norman Lords no less; but principally in regard that Rights require the consideration of such as are the most learned in the Laws.

Rights of Tythes of a Lay-fee, cap. 2. or where the Tenure is in que­stion, belong to the King's Court.

Pleas of Debts by troth-plight, cap. 3. belong to the King's Court.

These were Saxon Laws, and do intimate, that it was the endeavour of the Clergie to get the sole cognizance of Tythes, because they were ori­ginally their dues; and of Debts by troth-plight, because that Oaths seemed to relate much to Religion, whereof they held themselves the onely Pro­fessors.

The King's Justice shall reform Errours of the Ecclesiastical Courts, cap. 4. and Crimes of Ecclesiastical persons.

Appeals shall be from Arch-Deacons Courts to the Bishops Courts, cap. 5. and thence to the Archbishops Courts, and thence to the King's Court, and there the Sentence to be final.

No man that ever was acquainted with Antiquity, Constit. at Clarindon. will question that these were received Laws in the Saxons time; nor did the Clergie ever quarrel them, till the Normans taught them by courtesie done to Rome, to expect more from Kings than for the present they would grant; where­of [Page 112] see Cap. 47. But King Steven that was indebted to the Clergie for his Crown, and could not otherwise content them, parted with this Jewel of Supreme power in Causes Ecclesiastical to the Roman cognizance, as hath been already noted; but Henry the second would have none of this Cheat at so easie a rate. This struck so smart a blow, as though the Pope­dom had but newly recovered out of a paralytick Schism, yet (seeing it so mainly concerned the maintenance of the Tripple-Crown) Alexander the Pope having lately been blooded against a brave Emperour, made the less difficulty to stickle with a valiant King; who is conclusion was fain to yield up the Bucklers, and let the Pope hold what he had gotten, not­withstanding against this Law, and all former Law and Custom. And thus the Popes Supremacy in Spiritual Causes, is secured both by a Reco­very and Judgment, Constit. at Clarindon. by confession thereupon.

The King shall have vacancies of Churches, cap. 6. and power to e­lect by his secret Council: The Party elected shall do homage salvo ordine, and then shall be consecrated.

This certainly was none of the best, yet it was a custom not altogether against reason, although not suitable to the opinion of many; yet we meet two alterations of the ancient custom. First, that the election shall be by the King and secret Council; whereas formerly the election of Bi­shops and Archbishops was of such publick concernment, as the Parliament took cognizance thereof; and (that which was worse) a Council was hereby allowed, called a secret Council, which in effect is a Council to serve the King's private aims; and unto this Council, power given in the order­ing of the publick affairs, without advice of the publick Council of Lords, which was the onely Council of State in former times. And thus the pub­lick affairs are made to correspond with the King's private interest, which hath been the cause of much irregularity in the Government of this Island ever since. The second alteration resteth in the salvo, which is a clause never formerly allowed, unless by practice in Steven's time, whenas there was little regard of the one or the other: Nor doth it concur with the file of story, Constit. at Clarindon. that it should be inserted within these Constitutions, seeing that Writers agree it was the chief cause of quarrel between him and Becket, who refused submission without the clause, and at which the King stuck with the Archbishop for the space of seven years, which was six years after the Constitutions were consented unto, and concluded upon.

No Clergie-man or other may depart the Realm, cap. 7. without the King's License.

It is a Law of Nations, and must be agreed on all hands, that no rea­son of State can allow dispensations therein, especially in a doubtful Govern­ment, where the Supremacy is in dispute: and this the wilful Archbishop never questioned, till he questioned all Authority, but in order to his own; for but the year before, when he went to Turonn to the general Council upon summons, M. Paris. he first obtained License from the King before he went.

No Sentence of Excommunication or Interdiction to pass against the King's Tenant or any Minister of State, cap. 8. without License first had of the King, or his Chief Justice in the King's absence.

[Page 113] Till the Conquest, Constit. at Clarindon. no Excommunication passed without Warrant of Law made by the joynt assembly of the Laity and Clergy; but the Conque­rour having let loose the Canons, and the Clergie having got the upper hand in Councils, made Canons as they pleased, and so the Laity are ex­posed to the voluntary power of the Canon: vid. cap. onely as well the Normans, as until these times, Kings have saved their own associates from that sud­den blow, and upon reason of religious observance, lest the King should converse with excommunicate persons e're he be aware.

The Laity are not to be proceeded against in Ecclesiastical Courts, cap. 9. but upon proof by Witnesses in the presence of the Bishop: and where no Witnesses are, the Sheriff shall try the matter by Jury in the presence of the Bishop.

A negative Law, that implieth another course was used upon light Fame or Suspition ex officio, although the Oath at that time was not born into the World, and that all this was contrary to the liberty of the Subject, and Law of the Land: And it intimates a ground of prohibition in all such cases upon the Common Law; which also was the ancient course in the Saxons times, as hath been formerly noted.

Excommunicated persons shall be compelled onely to give pledge, cap. 10. and not Oath, or Bail to stand to the Judgement of the Church.

Upon the taking and imprisoning of the party excommunicate, Constit. at Clarindon. the course anciently was, it seemeth, to give Pledge to stand to Order. Of this the Bishops were weary soon, as it seemeth; and therefore waved it, and betook themselves to other inventions of their own, viz. to bind them by Oath or Bail; both which were contrary to Law: for no Oath was to be administred but by Law of the Kingdom; nor did it belong to the Ecclesiastical Laws to order Oaths or Bail; and therefore this Law be­came a ground of prohibition in such cases, and of the Writ de cautione ad­mittenda.

Persons cited, cap. 11. and making default, may be interdicted, and the King's Officer shall compel him to obey.

If the King's Officer make default, he shall be amerced, and then the party interdicted may be excommunicated.

So as the Process in the Spiritual Courts was to be regulated according to Law. Nor did it lie in the power of such Courts to order their own way, or scatter the censure of Excommunication according to their own liking. This, together with all those that forego, the Arch-bishop upon his repentance absolutely withstood, although he had twice consented, and once subscribed to them, Constit. at Clarindon. having also received some kind of allowance there­of even from Rome it self.

Clergy-men holding per Baroniam, cap. 12. shall do such services as to their Tenure belong, and shall assist in the King's Court till judge­ment of Life or Member.

[Page 114] Two things are hereby manifest. First, that notwithstanding the Con­querour's Law formerly mentioned, Bishops still sate as Judges in the King's Courts, as they had done in the Saxon times; but it was upon cau­ses that merely concerned the Laity; so as the Law of the Conquerour ex­tended onely to separate the Laity out of the Spiritual-Courts, and not the Clergie out of the Lay-Courts. Secondly, that the Clergie, especially those of the greater sort, questioned their services due by Tenure, as if they intended neither Lord nor King, but the Pope onely. Doubtless the use of Tenures in those times was of infinite consequence to the peace of the Kingdom, and government of these Kings; whenas by these princi­pally, not onely all degrees were united and made dependant from the Lord paramount to the Tenant peravale, but especially the Clergie with the Laity upon the Crown; without which, a strange metamorphosis in Go­vernment must needs have ensued, beyond the shape of any reasonable con­ceit, the one half almost of the people in England being absolutely put un­der the Dominion of a foreign power.

Sanctuary shall not protect forfeited Goods, cap. 13, 14. nor Clerks convi­cted or confessed.

This was Law; but violence did both now and afterwards much obli­terate it.

Churches holden of the King shall not be aliened without Li­cense. Constit. at Clarindon. cap. 15.

It was an ancient Law of the Saxons, that no Tenements holden by ser­vice could be aliened without License or consent of the Lord, because of the Allegiance between Lord and Tenant. Now there was no question but that Churches might lie in Tenure as well as other Tenements; but the strife was by the Church-men, to hold their Tenements free from all humane service; which the King withstood.

Sons of the Laity shall not be admitted into a Monastery with­out the Lord's consent. cap. 16.

Upon the same ground with the former: for the Lord had not onely right in his Tenant, which could not be aliened without his consent, but also a right in his Tenant's Children, in regard they in time might by descent become his Tenants, and so lie under the same ground of Law: For although this be no alienation by legal purchase, yet it is in nature of the same relation; for he that is in a Monastery is dead to all worldly affairs.

These then are the rights that the King claimed, and the Clergy dis­claimed at the first; although upon more sober consideration they gene­rally consented unto the five last: But their Captain-Archbishop Becket withstood the rest, which cost him his life in the conclusion; with this honourable testimony, that his death, Sampson-like, effected more than his life: For the main thing of all the rest the Pope gained to be friends, for the loss of so great a stickler in the Church-affairs as Becket was.

In this Tragedy the Pope observing how the English Bishops had forsa­ken [Page 115] their Archbishops, espied a muse through which all the game of the Popedom might soon escape, and the Pope be left to sit upon Thorns in regard of his Authority here in England. For let the Metropolitan of all England be a sworn servant to the Metropolitan of the Christian World, and the rest of the English Bishops not concur, it will make the Tripple Crown at the best but double. Antiq. Brit. 302. Alexander the Pope therefore meaned not to trust their fair natures any longer; but puts an Oath upon every English Bishop, Fox. An. 1179. to take before their consecration, whereby he became bound

• 1. To absolute allegiance to the Pope and Romish Church.
• 2. Not to further by deed or consent any prejudice to them.
• 3. To conceal their Counsels.
• 4. To aid the Roman Papacy against all persons.
• 5. To assist the Roman Legat.
• 6. To come to Synods upon Summons.
• 7. To visit Rome once every three years.
• 8. Not to sell any part of their Bishoprick without consent of the Pope.

And thus the English Bishops that formerly did but regard Rome, now give their Estates, Bodies and Souls unto her service; that which remains, the King of England may keep: M. Paris. An. 1167. And well it was that it was not worse, considering that the King had vowed perpetual enmity against the Pope. But he wisely perceiving that the King's spirit would up again, having thus gotten the main battle, durst not adventure upon the King's rear, lest he might turn head: Baronius An­nal. 1164. Sec. 11. and so he let the King come off with the loss of Appeals, and an order to annul the customs that by him were brought in against the Church, which in truth were none.

This was too much for so brave a King as Henry the second, to lose the scare-crow-power of Rome: yet it befel him as many great spirits, that favour prevails more with them than fear or power: For be­ing towards his last times worn with grief at his unnatural Sons, a shadow of the kindness of the Pope's Legat unto him, M. Paris. An. 1176. won that which the Clergy could never formerly wrest from him in these particulars gran­ted by him: that,

No Clerk shall answer in the Lay-courts, but onely for the Fo­rest, 1 and their Lay-fee.

This savoured more of courtesie than Justice, and therefore we find not that the same did thrive, nor did continue long in force as a Law, al­though the claim thereof lasted.

Vacancies shall not be holden in the King's hand above one 2 year, unless upon case of necessity.

This seemeth to pass somewhat from the Crown, but lost it nothing; for if the Clergy accepted of this grant, they thereby allow the Crown a right to make it, and a liberty to determine its own right, or continuing the same by being sole Judge of the necessity.

[Page 116] 3 Killers of Clerks convicted, shall be punished in the Bishops presence by the King's Justice.

In the licentious times of King Steven, wherein the Clergy played Rex, they grew so unruly, that in a short time they had committed above a Hundred murthers. To prevent this evil, the King, loth to enter the List with the Clergy about too many matters, let loose the Law of feud, for the friends of the party slain to take revenge; and this cost the bloud of many Clerks: The Laity haply, being more industrious therein than o­therwise they would have been, because the Ecclesiastical Judge for the most part favoured them. As an expedient to all which, this Law was made, and so the Clergy was still left to their Clergy, and Justice done upon such as sought their bloud.

4 Clergy-men shall not be holden to trial by Battle.

It was an ancient Law of the Saxons, and either by neglect worn out of use, or by the valour of the Clergie laid aside, as resol­ving rather to adventure their own bloud, than to end their quar­rel before the Lay-Judge by Plea: but grown weary of that course, and likely also put hard to the pinch upon Complaints made by them against Clerk-slayers, they are fain to have recourse to their ancient Privi­ledge.

Hitherto therefore it is manifest the Clergie were in their growing con­dition, notwithstanding the policy and power of Henry the second, who was the Paragon of that age.

After him reigned Richard the first, that must expiate his disobedience to his Father, by obedience to his ghostly Father the Pope, in undertaking the holy War; and being gone, left the Government in his absence so deeply intrusted to the Clergy, as they could lose nothing of what they had gained, unless they would; and might have gained much more than they did or should, had not the Bishop that was the overseer of the whole Kingdom been drunken with vanity, and spued out his own shame. How­ever the success was, it was not contrary to the principles of those times: for Richard had experience in the Emperour Frederick and his Father's example, that the Pope and Clergie were too hard for all the Potentates in Europe, and therefore might most safely trust them with all he had at home, whilst he was in their service abroad. Nor were they short of what was intrusted to them, but stuck close for the maintenance of his right to the Crown, and emptied themselves even to the very consecrated Vessels, and procured the Laity of all sorts to do the like, to save the King­dom from the rape of strangers and usurpers, who esteemed the King dead in Law, and as one buried alive.

Thus passed they to King John the Government, supposing themselves well enough assured of what they had gotten by their several atchieve­ments had under the Reigns of three several Kings successively: And King John might well enough have understood the times, if he had seri­ously considered them: but being heightned all his life-time with lawless Government, wherein he was trained up in Ireland, he knew not how to stoop, till he stooped so low as the Legat's Knee, and his Crown at the Pope's Foot; leaving an example to posterity to beware of striving with the Clergie.

[Page 117] If then these sparks of ambition were so violent being alone, certainly in their joynt consultations much more. They had long striven now since the Conquest to have excluded the Laity from their Synods, and about these days effected it. And yet about Henry the second's time it may be sup­posed the thing either was not yet done, or so lately, that the Law was not clear in that point; for Petrus Blecensis, who was Arch-deacon of Bath about those times, in his Epistle to the Arch-bishop of York con­cerning the restraint of the growing Sect of the Publicans, he adviseth in these words: Accipite clerum, congregate populum, & ex eorum communi deliberatione, qui Spiritum Domini habent, terribilis constitutio promulge­tur, &c. And if the Historian doth not mistake, the proceedings against that Sect being onely for errours in Religion, was in a Council of Bishops and Lords. Nevertheless, whether present or absent, the Laity sate there as Cyphers, making the number great, but not valuable by themselves. For even in the Norman times they were brought so low, as the Consti­tution made by the Clergie wrought more upon them, than civility it self can work upon professors of Religion in these days. M. Westm. An. 1127. For it seems excess of long Hair was grown to that measure, that the Synod cried out against it, and decreed that men should cut their Hair so as their Eyes and laps of their Ears might be seen; and the King himself, I mean Henry the first, submitted to this cut, and made all his Knights to do the like, and ex­posed themselves to the then-odious by-names of Clowns or Priests, (like to the round-heads of these days) who formerly marched under the title of Criniti or Ruffians. This did but touch the Hair, but they went to the quick, when they decreed that Lords should not sell their Villains, and that Outlawries should pass in certain particular cases; as in the Constitu­tions of Archbishop Anselm may appear. Afterwards in these Kings times they flew at the Throat of the Government, Antiq. Brit. 150. ibid. 155 [...] got all places of ho­nour, or profit, or power, whether for Peace or War, under their gripe; deposed and advanced as they pleased, even to the Royal Throne it self; and that not onely out of a sudden passion of State, but advisedly con­cluded for a maxime. That the election of the King belonged to them; as in the case of the election of Maude the Empress, Ibid. 127. they did hold forth to all the World; and in which the King also then flattered them, as hol­ding their Election so necessary, that he kept the whole Synod in duress to have their votes for the election of his Son to be his Successor.

CHAP. LX. Of the English Commonalty since the Normans time.

THe dignity of the English Crown thus deflowred by the great men, was no loss to the Common people: For as in all decays of Mo­narchy the great men get nothing if they please not the people, so the King can hold nothing if they be not contented. And yet contented or not contented, they could not gain much; for as affairs stood then in the Christian world, the Politicians discourse of three kinds of Government proved idle; neither could Monarchy, Aristocracy, nor Democracy, attain any semblable condition in any place, so long as the Church held its design a­part, and prevailed to have the greatest share in all; not now by the fa­vour either of great or small, but by a pretended divine right, through [Page 118] which they now had gotten to their full pitch of Lordship in the Consci­ences of men. It must be acknowledged that this was a distemper in Government; yet such it was, as kept humours low, and restrained the in­ordinate excesses that in all kinds of Government are subject to break forth; so as neither King, nor Lords, nor People could swell into larger proportion than would suit with the ends of the Church-men. But to mind the matter in hand: somewhat the Commons gained in these stormy times: The Taxes that they were charged with, were rather perswaded than impo­sed upon them; and generally they were sparing in that work: and it is noted for the honour of King Steven, that though he was seldom with­out War, yet he not onely never charged the people with any Tax, but released that of Dane-gelt, and acquitted the Subject for ever of that Tax, which former Kings challenged as their right; all which shew him to be a brave King, if he was not a very rich man. Henry the second was more heavy, because he had more to do: yet find we but one assessment, which was Escuage, unless for the holy War, which was more the Clergy-mens than his. Richard was yet a greater burthen: his Reign was trouble­some to him, and he deserved it; for from the beginning thereof to the ending, could never the guilt of his disobedience to his Father be blotted out: but it was more troublesome to the people, because it cost so much treasure, was managed by such ill Governours, (except the Archbishop of Canterbury) and was unsuccessful in most of his undertakings; yet ne­ver invaded the liberties of the Commons by any face of Prerogative But what wanted in him, was made compleat and running over in his Successor John, who (to speak in the most moderate sence of his Government) being given over to himself, when he was not himself, robbed the Lords of their authority, bereaved the Church of its Rights, trod under foot the Liberties of the people, wasted his own Prerogative: and having brought all things into despair, comes a desperate cure; the head is cut off to save the body, and a president left for them that list to take it up in future a­ges. And thus that which Steven gave, Henry the second lost, Richard the first would not regain, and John could not; and so all were gainers but the Crown.

CHAP. LXI. Of Judicature, the Courts, and their Judges.

IT is no silent argument that the Commons gain, where Laws grow in­to course; and it was the lot of these troublesome times to lay a foun­dation of a constant Government, such as all men might learn, which formerly was laid up onely in the breasts of wise experienced men. The two most considerable points in Government, is the Law, and the Execu­tion; the latter being the life of the former, and that of the Common­wealth. I say not that the Law was augmented in the body of it, or that the Execution had a freer course than in the best of the former times; but both were more and more cleared to the world in many particulars, as well touching matters concerning practice of the Law, as touching rules of righteousness. For the first whereof, we are beholding to Glanvil in Henry the second's time; and for the latter, to King John, or rather the Barons in his time, in the publishing of the Grand Charter, or an [Page 119] enumeration of the Liberties or Customes of the people derived from the Saxons; revived, continued, and confirmed by the Normans and their Successors: which for the present I shall leave in lance dubio, to stand or fall, till occasion shall be of clearing the point, in regard that King John soon repented of his Oath, (the Bond of his consent) and to heal the Wound, got the Pope's pardon and blessing thereupon: so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way.

The execution of the Law was done in several Courts, according to the several kinds of affairs, whereof some concerned matters of Crime and Penalty; and this touched the King's honour, and safety of the per­sons of himself and his Subjects, and therefore are said to be contra coronam & dignitatem, &c. The second sort concern the profits of the Crown, or treasure of the Kingdom. The third concern the safety of the Estates of the people. These three works were appointed unto three several Courts, who had their several Judges especially appointed to that work. Origi­nally they were in one, viz. in the supream Court of Judicature, the Court of Lords, whereof formerly was spoken; but after, through increase of affairs, by them deputed or committed to the care of several men that were men of skill in such affairs, and yet retained the Supremacy in all such cases still. And because that which concerned the publick Treasure was of more publick regard than the other, the deputation thereof was committed probably to some of their own members, Gloss. who in those days were Barons of the Realm, and afterwards retained the Title, but not the Degree; and therefore were called for distinction-sake, Barons of the Ex­chequer. The particular times of these deputations appear not clearly out of any monument of antiquity; nevertheless it is clear to me that it was before Henry the second's time, as well because Henry the first had his Judex fiscalis, Ll. Hen. 1. c. 24. as Glanvil so frequently toucheth upon the King's Court of Pleas, which cannot be intended at the Court of Lords; for that in those days was never summoned but in time of Parliament, or some other special occasion. But more principally because the Historian spea­king of the Judges itinerant, Hoveden. reciteth some to be of the Common-pleas; which sheweth that there was in those days a distinction of Jurisdiction in Judicatures. And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Coun­cil of Lords was laid aside by Kings, and a Privy-Council taken up, unto whom could not regularly belong any juridical power, because that re­mained originally in the grand assembly of the Lords.

Over these Courts, or two of them, one man had the prime Title of Chief Justice, who then was called Lord Chief Justice of England, and whose office was much of the nature of the King's Lieutenant in all cau­ses and places, as well in War as Peace; and sometimes was appointed to one part of the Kingdom, and by reason thereof had the name onely of that part, and some other of the other parts. The greatness of this Of­fice was such, as the man for necessity of state was continually resident at the Court, and by this means the King's Court was much attended by all sorts of persons; which proved in after-times as grievous the King, as it was burthensome to the people. Other Judges there were, which were chosen for their learning and experience, most of them being of the Cler­gie, as were also the under-Officers of those Courts; for those times were Romes hour, and the power of darkness.

Other Courts also were in the Country, and were Vicontiel or Courts [Page 120] of Sheriffs, and Lords of Hundreds and Corporations, and Lordships, as formerly; and these were setled in some place. But others there were, which were itinerant, over which certain Judges presided, which were elected by the Grand-Council of Lords, Hoveden. and sent by Commission from King Henry the second throughout the Kingdom, then divided into Six Circuits, unto each of which was assigned Three Justices; so as the whole number of Justices then was Eighteen. The office was before the coming of the Saxons over hither, but the assignation was new; as also was their Oath, for they were sworn. But the number continued not long, for within four years the King re-divided the Land into four Circuits, and unto each Circuit assigned five Justices, making in the whole the number of Twenty and one Justices; for the Northern Circuit had six Justices, Hoveden. 137. which the King made Justices of the Common pleas throughout the Kingdom. Ibid. 445. Neither yet did the first Commission conti­nue so long as four years; for within that time Richard Lucy one of the Justices had renounced his Office and betaken himself to a Cloister, and yet was neither named in the first Commission nor in the latter; nor did the last Commission continue five years; Hoveden. An. 1184. for within that time Ralph Glan­vil removed from the Northern Circuit to that of Worcester, as by the story of Sir Gilbert Plumpton may appear, though little to the honour of the justice of the Kingdom, or of that Judge, however his book commen­ded him to posterity. I take it upon the credit of the reporter, that this itinerary judicature was setled to hold every Seven years; Co. jurisd. c. 33 but I find no monument thereof before these days.

As touching their power, certainly it was in point of judicature as large as that of the Court of Lords, though not so high: It was as large, be­cause they had cognizance of all Causes both concerning the Crown and Common-pleas. Hoveden. Glanvil. l. 14. c. 7. And amongst those of the Crown this onely I shall note, that all manner of falshood was inquirable by those Judges, which after came to be much invaded by the Clergie.

I shall say no more of this, but that in their original these Iters were little other than visitations of the Country by the grand Coun­cil of Lords. Nor shall I adde any thing concerning the Vicontiel Courts and other inferiour but what I find in Glanvil; Glanv. lib. 1. cap. 2. that though Robbery belonged to the King's Court, yet Thefts belonged to the Sheriff's Court; and (if the Lords Court intercepts not) all batteries and woundings, unless in the complaint they be charged to be done contra pacem Domini Regis: Idem. lib. 9, & 10. the like also of inferiour Trespasses, besides Common-pleas, whereof more shall follow in the next Chapter as occasion shall be.

CHAP. LXII. Of certain Laws of Judicature in the time of Henry the se­cond.

ANd hereof I shall note onely a few as well touching matter of the Crown as of property, being desirous to observe the changes of Law with the times, and the manner of the growth thereof to that pitch which in these times it hath attained.

[Page 121] We cannot find in any story, that the Saxon Church was infested with 1 any Heresie, Heresie. from their first entrance, till this present Generation. The first and last Heresie that ever troubled this Island, was imbred by Pela­gius; but that was amongst the Britains, and was first battered by the Council or Synod under Germanus; but afterwards suppressed by the Zeal of the Saxons, who liked nothing of the British breed, and for whose sake it suffered more haply than for the foulness of the opinion. The Saxon Church, Hoveden. 585. leavened from Rome for the space of above five hundred years, held on its course, without any intermission by cross Doctrine spring­ing up, till the time of Henry the second. Then entred a Sect whom they called Publicans, but were the Albigences; as may appear by the de­cree of Pope Alexander, whose opinions I shall not trouble my course with: but it seems they were such as crossed their way, and Henry the se­cond made the first president of punishing Heresie in the Kingdom, under the name of this Sect; Nubrig. lib. 2. cap. 13. whom he caused to be brought before a Council of Bishops, who endeavoured to convince them of their errour: but failing therein, they pronounced them Hereticks, and delivered them over to the Lay power; by which means they were branded in the fore-head, whipped, and exposed to extremity of the cold, (according to the decree of the Church) died. Decret. Papae Alexand. This was the manner and punishment of Hereticks in this Kingdom in those days; Hoveden. 585. albeit in seemeth they were then decreed to be burnt in other Countries, if that Relation of Cog shall be true which Pi­cardus noteth upon the 13th Chapter of the History of William of New­berry, out of which I have inserted this Relation.

Another Case we meet with in Henry the second's time, concerning A­postacy, 2 which was a Crime that as it seems died as soon as it was born; Apostacy. for besides that one, Bracton, lib. 3. cap. 9. we find no second thereto in all the file of English story. The particular was, that a Clerk had renounced his Baptism, and turned Jew; and for this was convicted by a Council of Bishops at Oxford, and was burned. So as we have Apostacy punished with death, and Here­sie with a punishment that proved mortal; and the manner of conviction of both by a Council of the Clergie, and delivered over to the Lay-power, who certainly proceeded according to the direction of the Canon, or advice of the Council. These (if no more) were sufficient to demonstrate the growing power of the Clergie, however brave the King was against all his Enemies in the field.

Treason was anciently used onely as a Crime of breach of Trust or Fealty, 3 as hath been already noted; Treason. now it grows into a sadder temper, and is made all one with that of laesa Majestas; and that Majesty that now-a-days is wrapped up wholly in the person of the King, was in Henry the second's time imparted to the King and Kingdom, as in the first times it was more related to the Kingdom. Lib. 1. cap. 2. And therefore Glanvil in his book of Laws, spea­king of the Wound of Majesty, exemplifies Sedition and destruction of the Kingdom, Lib. 10. c. 1. to be in equal degree a Wound of Majesty, with the destruction of the person of the King: and then he nameth Sedition in the Army, and fraudulent conversion of Treasure-trove, which properly belongs to the King. All which he saith are punished with Death and forfeiture of E­state, and corruption of Bloud; for so I take the meaning of the words in relation to what ensueth.

Felonies, of Manslaughter, Burning, Robbery, Ravishment, and Fausonry, are 4 to be punished with loss of Member and Estate. Felonies.

[Page 122] This was the Law derived from the Normans, and accordingly was the direction in the Charge given to the Justices itinerant in Henry the se­cond's time, as appeareth in Hoveden. But Treason or Treachery against the Oath, Ll. Hen. 1. c. 25. Fealty, or Bond of Allegiance, as of the Servants against the Lord, was punished with certain and with painful deaths: And therefore though the murther of the King was Treason, yet the murther of his Son was no other than as of another man, unless it arose from those of his own Servants. Ll. Hen. 1. c. 79. The penalty of loss of Estate, was common both to Treason and Felony; it reached even unto Thefts; in which case the forfeiture, as to the Moveables, Glanv. lib. 7. cap. 17. was to the Sheriff of the County, unto whose cognizance the case did belong: and the Land went to the Lord immediately, and not to the King. But in all cases of Felony, and of a higher nature, the party (though not the King's Tenant) lost his personal Estate to the King for e­ver, his Free-holds also for a year and a day; after which, they returned to the Lord of the Soil, by way of Escheat. It seemeth also, that the loss not onely of Chattels and Goods, but also of Lands, &c. extended to Out­lawries (I conceive in case of Felony;) and the King's Pardon in such case could not bind the Lord's right of Escheat, although it might discharge the Goods, and the year and day whereunto the King was entitled: which case alone sufficiently declareth what power Kings had in the Estates of their Subjects.

5 Manslaughter made not bailable.

This was Law in Henry the second's time, although it crossed the Nor­man Law; Manslaugh­ter. Glanv. lib. 14. cap. 1. & 3. and questionless it was upon good ground: for the times now were not as those in the Conquerour's times, when shedding of Bloud was accounted Valour, and in most cases in order to the publick service. And now it seems it was a growing evil, and that cried so loud, as though in case of Treason bail might be allowed, yet not in this case, ubi ad terro­rem aliter statutum est, saith the Author.

6 Robbers shall be committed to the Sheriff, or in his absence to the next Castelane, Robbery. who shall deliver him to the Sheriff. And the Justices shall do right to them, and unto Trespassers upon Land.

By the Conquerour's Law these Offenders were bailable; Ll. Gulielm. 4. Spicil. 174. Glanv. lib. 14. cap. 1. and I conceive this was no Repeal thereof; and the rather, because Glanvil alloweth of Pledges in all cases (except Manslaughter) yea in those Crimes that did wound Majesty it self, although they concern the destruction of the King's person, or Sedition in the Kingdom or Army thereof. The Justices here­in mentioned, were intended to be the Justices itinerant; and the Trespas­ses upon Land, are meant such as are contra pacem Domini Regis, as riotous and forcible Entries: for some Trespasses were against the peace of the Sheriff, as formerly hath been observed.

7 Fauxonry is of several degrees or kinds: some against the King, others against other men; Fauxonry. Glanv. lib. 14. cap. 7. and of those against the King, some are punished as Wounds of Majesty, as falsifying the King's Charter: and whether falsifying of Money were in that condition or not, I leave; or falsifying of Measures, yet more inferiour, I cannot determine; but it is clear by Glanvil, that falsify­ing of the Deed of a private person, was of smaller consideration, and at the utmost deserved but loss of Member.

Inheritances may not be aliened.

[Page 123] Inheritances were in those times of Lands or Goods; for it was the cu­stom 8 then, Glanvil. lib. 7. cap. 1. Ibid. c. 5. that the personal Estate (the Debts deducted) was divisible into three parts; one whereof belonged in right to the Wife as her rea­sonable part, the other to the Heir, and a third to the Testator to make his Will of them; and of the other two parts he could not dispose by Will. Concerning Lands, it was regularly true, that no man could alien his whole Inheritance to the disherisin of his Heir, either by Act in his life­time, or any part thereof by his last Will, without the concurrence of the Heir. But of purchased Lands he may give part by Act executed in his life-time, though he have no Lands by inheritance; and if he hath no Issue, then he may alien all. And where a man hath Lands by inheritance, and also by purchase, he may alien all his purchased Lands as he pleaseth. If the Lands be holden in Gavel-kind, no more of the Inheritance can be con­veyed to any of the Children, than their proportionable parts will amount unto. This Law of Inheritance was divers, according to the Tenure: for the Lands in Knights-service always descended to the Heir; but such as were holden in Socage passed according to the custom, either to the eldest, or to the youngest, or to all equally. And thus stood the general state of Inheritance from the Normans time hitherto, Ll. Hen. 1. c. 88. seeming somewhat too strait for the Free men, that by Law of Property might challenge a power to do with their own as they pleased. But the Normans saw a double prejudice herein: the first was the danger of ruine of many of their Families, who now ingrafted into the English stock, and yet not fully, one might expect a late check to their preferments from the Saxon Parents, after a long and fair semblance made of their good Will. The second prejudice was the decay of their Militia, which was maintained by Riches more than by multitude of men; partly because that rich men are most fearful of of­fending, and therefore ordinarily are most serviceable both with their Bo­dies and Estates against publick dangers; and partly because by their Friends and Allies they bring more aid unto the publick, by engaging them in the common Cause, that otherwise might prove unsensible of the con­dition of their Country.

The Heir of a Free-man shall by descent be in such seisin as his Ancestor had 9 at the time of his death, Vide Glanv. l. 7. c. 9. doing service, and paying relief; and shall have his Chattels.

If the Heir be under age, the Lord shall have the Wardship for the due time, and the Wife her Dower and part of the Goods.

If the Lord with-hold seisin, the King's Justice shall try the matter by twelve men.

The first of these branches is declaratory of a ground of common Law; but being applied to the last, is an introduction of a new Law of tryal of the Heir's Right by Assize of Mortdancester, where formerly no remedy was left to the Heir, but a Writ of Right. If these three branches be particularly observed, they speak of three sorts of Heirs; of Tenants by Knight-service, viz. such as are Majors, or of full age; and such as are Mi­nors, or under age; and such as are of a doubtful age. Those that are of full age at the death of their Ancestors, may possess the Lands descended, and the Lord may not disseize him thereof; but may be resisted by the Heir in the maintenance of his possession, so as he be ready to pay Relief, and do service that is due: and if the Lord expel him, he shall have re­medy by Assize. Those Heirs that are Minors, shall be under the Lord's guardianship till they come to one and twenty years. The Heirs of such [Page 124] as hold by Socage, are said to be at full age at fifteen years, because at that age they were thought able to do that service; but the Sons of Burgesses are then said to be of full age, when they have ability to manage their Fa­ther's Calling, such as telling of Money, measuring of Cloath, and the like: yet doth not Glanvil, or any other, say that these were their full age to all purposes; albeit that some Burroughs at this day hold the last in custom to all intents whatsoever. The last branch provideth the remedy to reco­ver to the Heir his possession in case it be detained, either through doubt­fulness of age of the Heir, or his Title: and it directs the Issue to be tryed by twelve men. This tryal some have thought to be of Glanvil's inven­tion; and it may well be that this tryal of this matter, as thus set down, was directed by him: yet he useth often in his book the word solet, and in his Preface saith, That he will set down frequentius usitata; and it is past question, but that the tryal by twelve men was much more ancient, as hath been already noted. One thing more yet remaineth, concerning the Widow of the Tenant, whose Dower is not onely provided for, but her reasonable part of her Husband's personal Estate. The original hereof was from the Normans, and it was as popular as that of Wardships was Regal; and so they made the English women as sure to them, as they were sure of their Children.

10 The Justices shall by Assize try Disseisins done since the King's coming over Sea, next after the peace made between him and his Son.

This is called the Assize of Novel disseisin, or of disseisins lately made. It seems that the limitation was set for the Justices sake, who now were appointed to that work which formerly belonged to the County-courts; Glanvil. lib. 13. cap. 33. and to prevent intrenchments of Courts, a limitation was determined, al­though the copy seemeth to be mistaken: for the limitation in the Writ is from the King's last Voyage, or going into Normandy.

11 Justices shall do right upon the King's Writ for half a Knights Fee, and un­der, unless in cases of difficulty, which are to be referred to the King.

The Justices itinerant ended the smaller matters in their Circuits; the other were reserved to the King in his Bench.

12 Justices shall enquire of Escheats, Lands, Churches, and Women, in the King's gift: And of Castle-guard, who? how much? and where?

So as the Judges itinerant had the work of Escheators; and made their Circuits serve as well for the King's profit, as justice to the Subjects. They used also to take Fealty of the people to the King at one certain time of the year, and to demand Homage also. These matters of the King's Exche­quer made the presence of the Judges less acceptable, and it may be occa­sioned some kind of oppression. And as touching Castle-guard, it was a Tenure in great use in these bloody times; and yet it seemeth they used to take Rent instead of the personal service, else had that enquiry (how much?) been improper.

13 Of a Tenants holding, and of several Lords.

That one man may hold several Lands of several Lords, and so owe service to them all, is so common, as nothing can be more: nevertheless it will not be altogether out of the way, to touch somewhat upon the [Page 125] nature of this mutual relation between Lord and Tenant in general, that the true nature of the diversity may more fully appear. The foundati­on or subject of service was a piece of Land, or other Tenement, at the first given by the Lord to the Tenant, in affirmance of a stipulation be­tween them presupposed, by the giving and receiving whereof the Te­nant undertook to peform service to the Lord, and the Lord under­took protection of the Tenant in his right to that Tenement. Glanvil. [...] c. 4. The ser­vice was first by service solemnly bound, either by Oath, which the Lord or his Deputy by the Common-Law hath power to administer; as in the case of Fealty, in which the Tenant bound himself to be true to the ho­nour and safety of his Lords person, and to perform the service due to the Lord for the Tenement so given; or otherwise by the Tenants hum­ble acknowledgment, and promise not only to perform the services due, but even to be devoted to the Lords service, to honour him, and to adven­ture limb and life, and be true and faithful to the Lord. This is called Homage, from those words, I become your man Sir; and yet promiseth upon the matter no more but fealty in a deeper complement, albeit there be difference in the adjuncts belonging to eách. For though it be true that by promise of being the Lord's man, a general service may seem to be im­plied, yet in regard that it is upon occasion only of that present Tenure, it seemeth to me that it is to be restrained only to those particular servi­ces which belong to that Tenement; and therefore if that Tenement be holden in Socage, although the Tenant be bound to homage, yet that ho­mage ties not the Tenant to the service of a Knight; Lit. lib. 2. c. 5. nor contrarily doth the homage of a Tenant in Knight-service tie him to that of Socage upon the command of his Lord, though he professeth himself to be his man. Nor doth the Tenant's homage bind him against all men, nor ad semper; for in case he holdeth of two or divers Lords by homage for several Tene­ments, Glanvil. lib. 9. cap. 1. Lib. 7. cap. 10. and these two Lords be in War one against the other, the Tenant must serve his chief Lord of whom the Capital house is holden; or that Lord which was his by priority, who may be called the chief Lord, be­cause having first received homage, he received it absolutely from his Te­nant, with a saving of the Tenant's Faith made to other Lords and to the King; who in order to the publick had power to command a Tenant into War against his own Lord. If therefore he be commanded by the King in such cases unto War, Glanvil. lib. 9. cap. 1. he need not question the point of forfeiture; but if he be commanded by a chief of his other Lords into War, against a par­ty in which another of his Lords is engaged, his safest way is to enter upon the work, because of his Allegiance to that Lord, yet with a sal­vo of his fealty to that other Lord. Ibid. cap. 4. But in all ordinary cases, Tenants and Lords must have regard to their stipulation, for otherwise, if either break, the other is discharged for ever; and if the fault be in the Tenant, his Tenement escheats to his Lord; and if the Lord fail, he loses his Te­nure, and the Tenant might thenceforth disclaim, and hold over for ever. Nevertheless the Lords had two Priviledges by common custom belong­ing to their Tenures, which although not mentioned in the stipulation, were yet more valuable than all the rest; the one concerning matter of profit, the other of power: That of profit consisted in aids and relief. The aids were of three kinds, Ibid. c. 8. one to make the Lords eldest Son Knight, the other to marry his eldest Daughter; the third to help him to pay a re­lief to his Lord Paramount; which in my opinion sounds as much as if the Tenants were bound by their Tenures to aid their Lord in all cases of extraordinary charge (saving that the Lord could not distrain his Tenant Glanv. l. 9. c. 8. [Page 126] for aid to his War) and this according to the Lords discretion; Ibid. for Glanvil saith that the Law determined nothing concerning the quantity or value of these aids. These were the Norman ways, and savoured so much of Lordship, that within that age they were regulated: But that of reliefs was an ancient sacrifice, as of first-fruits of the Tenement to the Lord, in memorial of the first Lords favour in conferring that Tenement; and it was first setled in the Saxons time. The Lords Priviledge of power ex­tended so far, as to distrain his Tenants into his own Court to answer to himself, in all causes that concerned his right; and so the Lord became both Judge and Party; which was soon felt and prevented, as shall appear here­after. Another priviledge of the Lords power, was over the Tenants Heir after the Tenants death, in the disposing of the Body during the mi­nority and marriage of the same. As touching the disposing of the Body, the Lord either retained the same in his own power, or committed the same to others; Glanv. 7. 10. Ibid. c. 12. and this was done either pleno jure, or rendring an ac­count. As concerning the marriage of the Females that are Heirs, or so apparent, the Parents in their life-time cannot marry them without the Lords consent; nor may they marry themselves after their Parents death, without the same: and the Lords are bound to give their consent, unless they can shew cause to the contrary. The like also of the Tenants Wi­dows that have any Dowry in the Lands of such Tenure. And by such-like means as these, the power of the Barons grew to that height, that in the lump it was too massie both for Prince and Commons.

14 Of the power of the last Will.

It is a received opinion, that at the common-Law no man could devise his Lands by his last Will. If thereby it be conceived to be against com­mon reason, I shall not touch that; but if against custom of the ancient times, I must suspend my concurrence therewith, until those ancient times be defined: for as yet I find no testimony sufficient to assert that opini­on; but rather that the times hitherto had a sacred opinion of the last Will, as of the most serious, sincere, and advised declaration of the most inward desires of a man; which was the main thing looked unto in all Conveyances, Voluntas donatoris de caetero observetur. And therefore no­thing was more ordinary than for Kings in these times, as much as in them did lie, M. Paris. An. 1216. Hoveden. An. 1199. Malmsb. nov. l. 1. to dispose of their Crowns by their last Will. Thus King John ap­pointed Henry the Third his Successour; and Richard the first devised the Crown to King John; and Henry the first gave all his Lands to his Daugh­ter; and William the Conqueror by his last Will, gave Normandy to Robert, England to William, Malmsb. l. 3. and to Henry his Mothers Lands. If then these things of greatest moment under Heaven were ordinarily disposed by the last Will, was it then probable, that the smaller Free-holds should be of too high esteem to be credited to such Conveyances? I would not be mistaken, as if I thought that Crowns and Empires were at the disposal of the last Will of the possessor; nor do I think that either they were thus in this Kingdom, or that there is any reason that can patronize that opi­nion; yet it will be apparent that Kings had no sleight conceit of the last Will, and knew no such infirmity in that manner of conveyance, as is pre­tended; or else would they never have spent that little breath left them in vain. Glanvil. l. 7. cap. 1. & 5. I have observed the words of Glanvil concerning this point, and I cannot find that he positively denyeth all conveyance of Land by Will, but only in case of disherison; the ground whereof is, because it is contrary to the conveyance of the Law; and yet in that case also allow­eth [Page 127] of a disposing power by consent of the Heir; which could never make good conveyance, if the Will in that case were absolutely void, and therefore his Authority lies not in the way. Nor doth the particular customs of places discountenance, but rather advance this opinion: for if devises of Lands were incident to the Tenure in Gavel-kind, and that so general in old time, as also to the burgage Tenures, which were the rules of Corporations and Cities, Ll. Gulielm. cap. 61. Vbi Leges Angliae deperiri non possunt, nec de­fraudari, nec violari, how can it be said contrary to the common Law? And therefore those Conveyances of Lands by last Will, that were in and after these times holden in use, seem to me rather remnants of the more general custom, wasted by positive Laws, than particular customs grow­ing up against the common rule. M. Paris. An. 1181. Hoved. An. 1181. It is true, that the Clergy put a power into the Pope to alter the Law, as touching themselves in some cases: for Roger Arch-bishop of York procured a faculty from the Pope to ordain, that no Ecclesiastical persons Will should be good, unless made in health, Decret. Alex. Pap. Hoveden. fol. 587. Glanv. l. 7. cap. 5. & 16. and not lying in extremity; and that in such cases the Arch-bishop should possess himself of all such parties goods: but as it lasted not long, so was himself made a president in the case; for being overtaken with death e're he was provided, he made his Will in his sickness, and Henry the Se­cond possessed himself of his Estate. And it is as true, that Feme coverts in these days could make no Will of their reasonable part, be­cause by the Saxon Law it belonged joyntly to the Children. Nor could Vsurers continuing in that course at the time of their death make their Will, because their personal Estate belonged to the King after their death, and their Lands to their Lords by escheat, although before death they lie open to no censure of Law: but this was by an especial Law made since the Conquerour's time; for by the Saxon-Law they were reputed as Out-Laws. Ll. Edw. 37. Nevertheless, all these do but strengthen the general rule, viz. That regularly the last Will was holden in the general a good convey­ance in Law. If the Will were only intended and not perfected, or no Will was made, Glanv. l. 7. c. 6. cap. 8. then the Lands passed by descent, and the goods held course according to the Saxon Law, viz. the next Kinsmen and Friends of the intestate did administer, and as administrators, they might sue by Writ out of the Kings Court, although the Clergy had now obtained so much power, as for the recovery of a Legacy, or for the determining of the validity of the Will in its general nature, it was transmitted to the Ec­clesiastical Court.

CHAP. LXIII. Of the Militia of this Kingdom during the Reign of these Kings.

I Undertake not the debate of right; but as touching matter of fact shortly thus much: that from the Norman times the power of the Mi­litia rested upon two principles; the one the Allegiance for the common defence of the King's person and honour, and Kingdom; and in this case the King had the power to levy the force of the Kingdom: nevertheless the cause was still under the cognizance of the great Council, so far as to agree or disavow the War, if they saw cause; as appeared in the defecti­ons [Page 128] of the Barons in the quarrel between King Steven and the Em­press, and between King John and his Barons. The other principle was the service due to the Lord from the Tenant, and by vertue hereof (e­specially whenas the liberty of the Commons was in question) the Mi­litia was swayed by the Lords, and they drew the people in Arms either one way or the other, as the case appeared to them: the experience whereof the Kings from time to time felt, to their extream prejudice, and the Kingdoms damage. Nor did the former principle oversway the latter, although it might seem more considerable, but only in the times of civil peace, when the Lords were quiet, and the people well-conceit­ed of the Kings aims in reference to the publick; which happiness it was Henry the Second's lot to enjoy: for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate, not only gained honour abroad, but much more amongst his own people at home, who saw plainly that he was for Forraign employment of honour to the Kingdom; and not only contented with what he had in England, but im­barqued together with the Laity against the growing power of the Clergy, for the defence and honour of the priviledges of the Crown, wherein also the Liberties of the people were included. They therefore were secure in the Kings way, and suffered themselves to be engaged unto the Crown further than they or their Ancestors formerly had been, out of pretence of sudden extreme occasions of the Kingdom, that would not be match­ed with the ordinary course of defence. For the King (finding by former experience that the way of Tenures was too lame a supply for his acquests abroad, and that it had proved little better than a broken reed to the Crown in case of dispute with the people) aimed at a further reach than the Lords or Commons foresaw; and having learned a trick in France, brought it over (although it was neither the first nor last trick that Eng­land learned to their cost from France) which was a new way of levying of Men and Arms for the War, Hoveden. 1181. by assessing upon every Knights Fee, and upon every Free-man of the value of sixteen Marks yearly, their certain Arms; and upon every Free man of ten Marks yearly value, their certain Arms; and upon every Burgess and Free-man of an inferiour value, their cer­tain Arms. 2. That these should be ready prepared against a certain day. 3. That they should be kept and maintained from time to time in the Kings Service, and at his command. 4. That they should not be lent, pledged, sold, or given away. 5. That in case of death they should descend to the Heir, who if under age, should find a man to serve in his stead. 6. That in case the owner were able, he should be ready at a certain day with his Arms for the service of the King, ad fidem Domini Regis & Regni sui. 7. That unto this every man should be Sworn. I call this a new way of levying of Arms and Men, not but that formerly other Free-men and Burgesses found Arms, albeit they held not by Knight service; for it was so ordain­ed by the Conquerors Laws formerly used: but now the King thrust in two clauses (besides the altering of the Arms) the one concerning the Oath whereby all men became bound; the other concerning the raising and ordering of Men and Arms, which here seems to be referred to the King only, and in his service; and this I grant may imply much in common ca­pacity, viz. that all the power of the Militia is in Henry the Second. But this trick catched not the people according to the Kings meaning: for the words ad fidem Regis & Regni still left a muse for the people to escape, if they were called out against their duty to the Kingdom; and taught the doctrine [Page 129] which is not yet repealed, viz. That what is not according to their Faith to the Kingdom, is not according to their Faith to the King. And therefore they could find in their hearts sometimes to sit still at home, when they were called forth to War: as may appear in one passage in the days of King John, who had gathered together an Army for the opposing of foraign Power, at such time as the Pope had done his worst against him and the whole Kingdom; which Army was of such considerable strength, as I believe none since the Conquest to this day exceeded or parallell'd it: But the King's mean submission to the Pope's Legat so distasted the No­bles and People, as they left him to his own shifts; and that in such man­ner, as although afterwards he had advantage of them, and liberty enough to have raised an Army to have strengthned himself against the Nobles, yet the Lords coming from London, brought on the sudden such a party as the King was not able to withstand; and so he came off with that con­clusion made at Renny mead, which though in it self was honourable, yet lost the King so much the more, because it was rather gained from him, than made by him.

CHAP. LXIV. Of the Government of Henry the third, Edward the first, and Edward the second, Kings of England. And first, a general view of the disposition of their Government.

ONe hundred and ten years more I have together taken up, to add a period to this first part of discourse concerning English Govern­ment; principally because one spirit of arbitrary rule from King John, seem­eth to breath throughout the whole, and therewith did expire.

The first that presents himself is Henry the third, begotten by King John when he was in the very first enterprize of oppression that occasio­ned the first Barons bloudy Wars, and which this King was so miserable as to continue for the greatest part of his Life and Reign, and yet so hap­py as to see it ended about four years before he died. Although the soul be not ingendred from the parent, yet the temperature of the body of the Child doth sometimes so attemper the motion of the soul, that there is in the Child the very image of the Father's mind: and this Henry the third lively expressed, being so like unto his Father John in his worst course, as if his Father's own spirit had entred into him, and animated him in all his ways. He brought in with him the first president of Consci­ence in point of Succession by inheritance in the English Throne; for the stream of probabilities was against him. He was a Child, and the times required a compleat man, and a man for War. He was the Child of King John, whose demerits of the State were now fresh in the minds of all men. He was also designed to the Throne by his Father's last Will; M. Paris. An. 1216. which was a dangerous president for them to admit, who had but even now withstood King John's depositing of the Crown in the Pope's hands, as not being in the power of a King of England to dispose of his Crown according to his own will. Yet leaping over all these considera­tions, and looking on Henry the third as the Child of a King, that by good nouriture might prove a wise and just King, they closed about this spark, [Page 130] in hope it might bring forth a flame whereby to warm themselves in stor­my times. Nor did their hopes soon perish: for, during his minority, the King was wise to follow good Counsel, and by it purged out all the ill humours that the Kingdom had contracted in the rash distempers of his Fathers government. Nor did he onely follow the counsels of others herein, but even at such times as their counsels crossed, he chose those Counsels that suited with the most popular way; as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware. And yet two things troubled much those times: M. Paris. An. 1223. one, that they were times of parties; the other, that the Protector was somewhat too excel­lent to be a meer servant; and it is hard for the English Nobility to en­dure him to be greater; although it may seem reasonable that they that are thought worthy to govern a King, should be much more worthy to govern themselves. But the Pope put an end to all occasion of que­stion hereabout; for by his Brief he declares the King to be sixteen years old, and of age to govern himself; and therefore all Castles are forthwith to be rendred up into the King's hands. M. Paris. An. 1223, 1224. This proved the rock of offence, whilst some obeyed the Pope, and were impugners of those that put more confidence in the Castles than in the Kings good nature. Hence first sprang a civil broil, thence want of money, then a Parliament, wherein the Grand Charter of Englands Liberties once more was exchanged for a sum of Money. Thus God wheeled about successes. But the King ha­ving passed over his tame age under the Government of wise Counsellors, and by this time beginning to feel liberty, it was his hard condition to meet with want of Money; and worse, to meet with ill Counsellors, which served him with ill advice, that the Grand Charter would keep him down, make him continually poor, and in state of pupillage. To this giving credit, it shaped an Idea in his mind that would never out for for­ty years after; and thus advised, he neglects his own engagement, defies the Government that by his Royal word, and the Kings his predecessors, in cool bloud had been setled: and that he might do this without check of Conscience, he forbad the study of the Law, that so it might die without heir, and he have all by Escheat. This sadded the English, and made them drive heavily: the King (to add more strengh) brought in Foraigners and foraign Councils; and then all was at stand. The Coun­cils were for new ways. The great designe was to get money to supply the King's wants; and as great a designe was to keep the King in want: otherwise it had been easie for those at the helm to have stopped the concourse of Foraigners (other than themselves) from abroad; the con­fluence of the Queens poorer Allies, lavish entertainment, profuse rewards, cheats from Rome, and all in necessitous times. But strangers, to main­tain their own interests, must maintain strangeness between the King and his Subjects. To supply therefore these necessities, all shifts are used, as revoking of Charters, displacing of Officers, and fining them, Afforestations, with a train of oppressions depending thereon, Fines and Amercements, corrupt Advancements, Loans, and many tricks to make rich men offen­ders, especially projects upon the City of London. Nevertheless all pro­ved infinitely short of his disbursements; so as at times he is necessitated to call Parliaments, and let them know his wants. At the first the people are sensible, and allow supply; but after by experience finding themselves hurt by their supplies to the King, they grant upon conditions of renewing the power of the Great Charter; and many promises pass from the King to that end, and after that Oaths, and yet no performance: This makes [Page 131] the people absolutely deny supplies. Then the King pretends Wars in France, Wars in Scotland, and Wars against the Infidels in the Holy-land, whither he is going: the people upon such grounds give him aids; but finding all but pretences, or ill success of such enterprizes, they are hardned against supplies of him for the Holy War. Then he seems penitent, and pours out new promises, sealed with the most solemn execration that is to be found in the Womb of Story, and so punctually recorded, as if God would have all generations to remember it as the seal of the Covenant be­tween the King of England and his people; and therefore I cannot omit it.

It was done in full Parliament, M. Paris An. 1253. where the Lords Temporal and Spiritu­al, Knights, and others of the Clergy, all standing with their Tapers bur­ning. The King himself also standing with a chearly contenance, hol­ding his open hand upon his brest, the Archbishop pronounced this Curse ensuing.

By the authority of God omnipotent, of the Son, and of the Holy Ghost, and of the glorious Mother of God the Virgin Mary, and of the blessed Apostles Peter and Paul, and of all the other Apostles, and of the Holy Martyr and Arch­bishop Thomas, and of all the Martyrs, and of the blessed Edward King of England, and of all Confessors and Virgins, and of all the Saints of God.

We Excommunicate and Anathematize, and sequester from our holy Mother the Church, all those which henceforth knowingly and maliciously shall deprive or spoil Churches of their right.

And all those that shall by any art or wit rashly violate, diminish, or change, secretly or openly, in deed, word, or counsel, by crossing in part or whole those Ecclesiastical liberties, or ancient approved customs of the Kingdom, espe­cially the Liberties and free Customs which are contained in the Charters of the common Liberties of England, and the Forests granted by our Lord the King to the Archbishops, Bishops, Prelates, Earls, Barons, Knights, and Free­holders.

And all those who have published, or being published have observed any thing against them or their Statutes, or which have brought in any customs, or being brought in have observed; and all Writers of Ordinances or Councils, or Executioners, or such as shall judge by such things.

All such as are knowingly guilty of any such matters, shall ipso facto incur this Sentence: such as are ignorantly guilty shall incur the same censure, if be­ing admonished he amend not within fifteen days after admonition.

In the same censure are comprehended all perturbers of the peace of the King and Kingdom: for everlasting memory whereof, we have hereunto put our Seals.

And then all throwing down their Tapers extinguished and smoaking, they said, So let all that shall go against this curse be extinct, and stink in Hell. The King all the while continuing in the posture above-mentio­ned, said, So God me help, I will observe all these things sincerely and faith­fully, as I am a Man, as I am a Christian, as I am a Knight, as I am a King crow­ned and anointed.

If we shall pare away the superstitious ceremonies, and consider divine providence, we may search into all Histories of all ages, and we shall not find a parallel hereunto; so seriously composed, solemnly pronounced, with an Amen from the representative body of the whole Kingdom, put [Page 132] in writing under seal, preserved to posterity; vindicated by God him­self in the ruine of so many opposers. And yet the dust of time hath almost buried this out of the thoughts of men; so as few even of such as know it, do seriously consider how far it may yet and even now be charged upon the account of this Nation. Serious as it was, it was soon forgotten: nor would the King be long holden with promises, some un­happy Star struck him in his birth: he had been too hard for his pro­mises; and now having the Pope at his Elbow, he can dispence with his Oath, and bid defiance to an Execration: and in flat defiance of the Grand-Charter professeth oppression, accumulates forreign Counsellors, and forreign Guards, contemns his own people, ushers in the Pope's Extortions upon them to fill up the measure: thrives in nothing but in the match of his Son and Successor with a Sister of Spain, and yet that also helps to hasten on the publick poverty, and that a Parliament that brought forth a bloudy issue; although not by any natural power, but occasionally. For the Barons mean now no longer to trust to promises; strangers are banished the Realm, and others of the English bloud step­ped into their places and Revenues. But this was not all, the King must confirm the Grand-Charter; and thereto he addeth not onely his own Oath, but causeth the Prince his Son to confirm the same in like manner. It is likewise propounded to him, that the chief Officers of the Kingdom may be chosen such as the Parliament shall like of. And that other Laws meet for the government of the Kingdom might be established: of all these the King made no bones. And to make men believe that he was in good earnest, he was contented to disrobe and disarm himself, [...] and invest the Barons both with Sword and Scepter, retaining nothing but the Crown for himself. This had been safety e­nough for the Kingdom, but that it was a conclusion without an a­greement; for as it was on the King's part made from a principle of shame and fear, so it was determined in anger; for after that the King had been thus drest and girt for the space of Four or Five years, (whatsoever he thought all the while it is no matter) he began first to stretch his Conscience, and having the Pope's Dispensation to help, soon makes his Oath to fly assunder (although his Son had for the present more Conscience.) But the other girt held more stoutly, for the Lords had the Sword chained to their Arm by the King's own grant. Liceat om­nibus in regno nostro contra nos insurgere, & ad gravamen nostrum opem & operam dare, ac si nobis in nullo fenerentur; and the Lords maintained their hold, Dan. [...]. 1258. though not without some jealousies amongst themselves. And it is very probable had the King been a little longer breathed with patience, he might have had his will upon easier terms: for the Lords were not so jealous of one another as the Commons were jea­lous of the Lords, that they meaned to rule onely for themselves. But the King now being in a wood, and bemired, so as he must now resolve to get all or lose all, and so either satisfie his natural desires, or the re­mainder of his politick power, entred the field with the aid of those Commons that chose rather to be oppressed by one King than many Lords. And thus the Lords received the first blow, and gave the first foil: Afterwards being worsted by their own divisions and jealousies, they left a victory to the King that might have made him absolute, if he had been moderate; but pursuing revenge too far, he was distasted of his own party that looked on him as a Polyphemus that intended to devour the Enemy first, that he might more freely feast upon them­selves [Page 133] in the issue. This made victory follow the King afar off, and taught the King that the end of Civil War must be attended with mo­deration in the Conquerour, so far as may stand with publick safety; or otherwise he that is Conquerour to day by Sword, may be conquered to morrow by Jealousie. Thus many humours consumed, and all parts tired after four years continual War, the State cometh to its right Wits. The King's gains in all this bloudy sweat may be summed up in two heads. First, that he had liberty to chuse his principal Officers of State by advice of the Lords, and them also to displace by like Counsel. Se­condly, in that he gained (though at a dear rate) wisdom to observe the state of affairs, and to apply himself according to occasion: so lived Henry the third for three or four years after these troubles; long enough to let the World know that he was able to govern like an English King, and to teach his Son by his own late experience to be a wise gover­nour betimes.

For Edward the first being trained up in the Tragedy of a Civil War, Edward 1. wherein he was one of the chief actors; and having expiated the blou­dy way of his riotous youth by his Holy War, as they called it; now he betakes himself to amends making, by Justice in Govern­ment; having found by his Father's experience, that a Kingdom well go­verned (like good husbandry) preserves the owner, but being neglected destroys both.

He came over in his third year in August, was crowned in September, summoned a Parliament in February following, but adjourned it till after Easter: and then it is found that the Church of late had been ill go­verned; the Clergy-men grieved by many ways, the people otherwise handled than they ought to be, the Peace ill kept, the Laws less used, and De­linquents less punished than was meet; and in the sence of these incon­veniencies were the Laws of Westminster the first made; wherein the world may see the great difference between the Prince and the King in one and the same man.

The most part of those Laws were little other than plaisters applied to particular botches of those times; wherein the King dealt with a ten­der hand, as if he feared to ulcerate any part, and especially the Cler­gie, and therefore delivered the last Law in a petitionary way to the Clergie, because it concerned the execution of Justice in prohibited times, and yet bound up all with a salvo to himself and his prerogative, like a wise King, that would neither lose right, nor do rong; nor yet stickle to debate with his Subjects now, whenas his eye was upon a further mark. For Leolin the Prince of Wales had affronted him; Walsing. 46. and though he could not endure affronts, yet could he dissemble them for advantage; and so he suffered the Parliament to run its course, that he might have done the sooner. Otherwise he had a seed of his Father's conceit that Laws are not made for Kings, as appeared afterward: for after he had gotten his Army into the field, he took a fifteenth which was granted to his Father, and this was inaudito more: but there was no disputing with power, M. Westm. An. 1276. and there­fore the Subject must be contented rather to score it up against the future, than require present pay; so dangerous a thing it is for England, that Kings should have occasion to gather Armies, though for never so honourable employment.

The Welsh chase is hotly pursued, yet it did not rid much way; for it cost the English a voyage of nine years travel before they could attain the shore, although it had been often within their view. It may be the King [Page 134] found it advantageous for his Government, to maintain an Army in the field under the colour of the Welsh War, that he might more bow his Subjects to his own bent: for during these Wars, the King made many breathings, and took time to look to the husbanding of his own Revenue, as those Ordinances called Extenta manerii, and Officium Coronatoris, do witness, and the Statute of Bigami. But the people were not altogether yet tamed; for the times being still in Wars, and they occasioning much waste of Treasure, put the King to the utmost pitch of good Husbandry, and one degree beyond the same: so as under colour of seizing his own, he swept up also the Priviledges and Liberties of his Subjects; some Au­thors reciting the complaints of the Church-men, M. Westm. Polyd. virg. others of the Laity: so as it seemeth the King was no respecter of persons but his own. This, and others not unlike, had almost occasioned another Combustion, had not the meeting at Gloucester setled things for the present, by referring the right of Franchises to debate in the Eyer, and ordering reseizure of such Li­berties into the Subjects hands, whereof they had been dispossessed by Quo warranto, and Quo jure, under colour of the fourth Chapter of the Statute of Bigami.

Nevertheless, however debonair the King seemed to be, the sore between him and his Subjects was not fully cured; nor did the Lords trust him fur­ther than needs must: for whether they served in the Field, or met at Council, still they were armed; and during this daring of each other, were many profitable Laws made, whilst neither party durst venture bloodshed in touching too nigh upon the Priviledges of each other, principally be­cause the affairs in Wales were but laid asleep, and upon reviving, might turn the ballance to either side.

The Wars awake again, and therein are consumed nigh five years more of the King's Reign; so as whatever his intent was, he could have hitherto little opportunity to effect any thing for the advancement of the Prero­gative of the Crown at home: Nor had he scarcely breathed himself and Army from the Welsh Wars, but he found both France and Scotland his E­nemies at once. The King faced onely the first, and fought the second; which held him work the remainder of his days: and at the same time also he arrayed both the Clergy and Laity at his own home, as if Providence had given him security for the good behaviour; and yet it failed him in the issue, and left him to the censure of the World, whether his Justice was spontaneous, or by necessity; for as yet he held the Grand Charter at parley, and therefore was rather eyed, than much trusted: Albeit he was put upon confidence in the Subjects discretion for aid of him in his continual underta­kings: nor did they disclaim him herein, however chargeable it was; for all seem willing he should be employed any where, so as not within the four Seas.

It is probable the King knew it, and therefore having made a Voyage into France, he changed the Scene of War, but to the other side as it were of a River, in hope his Lords would follow; but it would not be. This an­gred him, and he them: nor would his Clergy allow him any aid Papa in­consulto, and therefore he outs them from his protection. These and his ir­regular preparations by War, by summons not onely of his Knights, but all other that held Land worth 20 l. per annum, Walsing. 69. and Taxes imposed by an ar­bitrary way, increased Rancor into a kind of State-scoul, little better than a Quarrel. For appeasing whereof, the King granted a consultation upon a prohibition, and unto both Clergy and Laity a confirmation of the Grand Charter at the long run, and allowed it as the common Law of the King­dom; and seconded the same with many succeeding confirmations, in [Page 135] the twenty seven and twenty eighth years of his Reign, as if he had utterly renounced all thought of a contrary way. 25 Edw. 1. But the Statute in his 28th year had a sting in the tail that was as ill as his saving of ancient aids and prisals, which was in the Statute of confirmation of the Charters, though it were omitted in this Statute; for the saving was of such a sence as time and occasion would move the King's heart to make it: and thus this Statute became like a Hocus Pocus, a thing to still the people for the present, and serve the King's turn, that he might more freely intend the conquest of the Scots; which once done, he might, if he would, try ma­steries with England. But God would not have it so; the King in Scot­land had power to take, but could not overtake; and the Scots, like birds of the prey, had wit enough to fly away, and courage enough to return upon advantages: and so the King was left to hunt the wind, which made him to return.

He might now expect the applause of his people for his good success, and the terrour of those that had stopped the broad way of his extrava­gant Prerogative; and therefore looks big, rubs up old sores, and (ha­ving his Army yet in the field) sends for those Lords that would not fol­low him in his Wars in Flanders. All come and submit, and as it were in so many words let the King know that all England is now tame, and like to be ridden at his discretion. And now there's nothing in his way but the fatal execration, which he feared, not in relation to God's anger; but rather to the exasperated Clergie, and the dread of the Pope's dire­ful Thunder-bolt. To avoid this storm, he procures a Dispensation from Rome to perjure and oppress without sin; a trick that he learned of his Father, and hid it within his breast, till now about two years before his end he brings it forth, to tell all the world that hitherto he had been just against his will. But having obtained his purpose, he neverthe­less misseth of his end; for a new King of Scots (our old good enemies) by divine providence suddenly crossed his way before him; and now it boots not to contend for arbitrary rule in England, and lose the Crown of Scotland, which he once thought he had sure; he faces about there­fore, and having spoken fair to his people, for Scotland he goes. Thus if all were not in a Parenthesis, the King intended a good period; but God onely knows what his furthest reach would have been if he had returned, for he was taken out of this world in Scotland, and so left this his government somewhat like an imperfect sentence.

His Son Edward should have compleated it, Edward 2. but that he wanted his Father's sence, and had too much of his Grandfather's superbient hu­mour, that meeting with a stiff spirit, and a weak mind, brought sud­den fire into the course of government, till it consumed it self in its own flame. For this King having newly slipt out of a bondage of wise Go­vernment under his Father, ran the wild chase after rash desires, spen­ding his former time in inordinate love, and his latter time upon re­vengeful anger, little inferiour to rage; and so in his whole government was scarce his own man. His love was a precedent of a strange nature, that commanded him from all the contentments of his Kingdom to serve one man, a stranger, and prostitute to all manner of licentiousness, meer­ly for some personal endowments. It shews that his judgement was weak, and his affections strong; and in that more weak, because he disco­vered it before he was crowned: like some of the weakest of the weaker Sex, the birth of whose minds are born assoon as they are conceived, and speak assoon as they are born. It is true, that the bravery of spirit may [Page 136] work after absoluteness in Kings, under the colour of some kind of wisdom. But it is one thing to rule without Law, and another to live without Rule; the one dashes against the Law of an English King, and may put on the name of Policy, but the other destroys the Law of mankind, and can bear no better name than of brutish desire.

All the while Gaveston was in view, we find nothing concerning Com­monwealth, or monument of Parliament, saving two Ordinances made by the King, and such Lords as suted to the King's way, rather than to his wants. 1 Edw. 2. The first was that de militibus, the other de frangentibus prisonam; for all the King's labour was to royallize Gaveston into as high a pitch as he could, and so to amaze his own eye-sight with contemplating the goodli­ness of his person. So as Gaveston is become the Image of the King, and presents his beams and influence into all parts of the Kingdom; and ac­cording to his Aspect they often change and wane, and yet at the best were but as in a misty night.

The Barons liked not this condition of State-Idolatry; they were willing to adore the King, but they could not bow to an Image: they desired nothing more, than that their King might shine in his proper glory. Thrice is Gaveston banished, thrice he returns; the last occasioned another Civil War, wherein Gaveston lost his head. Thus the Lords removed the E­clipse, but (little the better thereby) they find it a vain labour to compel the Sun to shine by force, when it hath no light. Though Gaveston be gone, the mist of foreign Councils prevail; this was bred in the Bloud, fed with Bloud, and ended in Bloud. Through the Glass of foreign Councils all things seem of foreign colour; the King to the People, and the People to him. The King at length begins to see himself underva­lued, and that it began in himself; ventures himself into the Wars with Scotland to win honour; goes with much splendour, but returns with the greatest blot that ever English King suffered, confounded a­broad, and slighted at home. For the bravest men, by ill success, are lost in common opinion; or, to speak in a higher strain, where God doth not bless, man will not. The King thus almost annihilated, catches hold of Rome, fawns on the Clergy, passes to them the Ordinances of Articuli Cleri, and de prisis bonis Cleri: which lost the Free-men no Right, al­though it concluded the Crown. And to caress the Commons, made the Statute de Vice-comitibus, and the City of London likewise by the Statute de Gavelletto. But God saw all sorts of men run at riot, and sends in upon the Nation Plague, Famine, and other extraordinary Testi­monies of his displeasure, even to the wonderment of other Nations; and this brought a kind of sobriety into Affairs, made all sorts tame, and for the present onely prepared them for better times. For the King's time of longing again is come, and he must have new Play-fellows; finds the Spencers, or rather was found of them; they grow in honour al­most beyond the reach of the Nobles, but not beyond their envy; and are more secure than Gaveston in this, that in their first sprouting the King's Council served himself and them to keep in with the Commons by making good Laws; such as the Statutes at York, of Essoyns, Attaints of Jurors, Levying of Fines, and Estreats into the Exchequer, &c. all of them promising good Government. The Barons nevertheless liked not the Spencers greatness, and being by several occasions exasperated, joyn in one, and occasion a new War: The King, aided by the Commons (who yet thought better of the King than of the Barons, whom they saw prejudiced rather out of self-apprehensions, than [Page 137] the publick good) prevailed against the Barons, and made them the first president of death upon the Scaffold.

Now the Spencers are Lords alone, thinking themselves above the reach of the once formidable Barons, and the Commons too inferiour for their respect. Thus lifted up, they take a flight like that of Icarus. They had so much of the King's heart, as they could not spare any part there­of to the Queen; and she being as loth to spare so much for them as they had, retired with the Prince to a relief which they brought from beyond Sea, and with whom both Lords and Commons joyn. The favourites missing of their wonted wings, come down faster than they ascended; and together with them, the King himself, all of them irrecoverably. Thus favourites, instead of Cement between Prince and people, becoming rocks of offence, bring ruine sometimes to all, but always to them­selves.

The King foresaw the storm, and thought it safest first to cry truce with the people, and come to agreement with them by common consent, for the extent of his Prerogative in certain particular cases questionable; Prerog. Reg. 17 Edw. 2. and this summed up, became 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 encroachments. And something was done to calm the Clergie for the demolishing of the Templar-Knights; Stat. Templar. but the wound was incurable; words are not believed, if actions do not succeed; nor will Oaths now made to bind Kings, Bishops, Counsellors of State, Sheriffs, Mayors, 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 self and the Lords with rage against the Spencers. The King flies, and being forsaken of the peo­ple, the Lords, the Clergie, his own Son, and the Wife of his own bosom, and of God himself, as the most absolute abject that ever swayed the 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 for ever blotted out of the thoughts of all Subjects, but to be had in everlasting remembrance of all Kings. For if a Kingdom or Parliament misleads the King, at the worst he is but misled by his Council; but if he be drawn aside by favo­rites, he must thank his own lust: in the one, he hath but the least share in the burthen; in the other, he must bear 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 weakness or power of these Kings, of whom the first and last had little to ground upon but their own will; and the other, I mean Edward the first, had more wisdom and power, but was otherwise distracted by foraign and more urgent employments; so as [Page 138] the work fainted before it came to its full period. The contest was be­tween the King and Barons, who till those days were rather the great and richer sort of men, than Peers, although they also were of the number. I am not so sharp-sighted as to reach the utmost intentions of the Lords: but their pretences are to such publick nature, as it is plain, that if their private interest was wrapped up therein, they were inseparable: And I shall never quarrel the Lords aim at private respects, whenas it is plain, the publick was so importantly concerned; and yet I will not justi [...]ie all that I find written concerning their Words and Actions. The Speech of the E. of Cornwal to his his elder Brother, M. Paris. An. 1227. and King Henry the Third, I will neither render up my Castle, nor depart the Kingdom, but by the judg­ment of the Peers: and of Simon the E. of Leicester to the same King, that he lyed, and were he not a King, the Earl would make him repent his word; and of the Lords, that they would drive the King out of his Kingdom, and elect another; and of the E. Marshal to Edward the first, that he would neither go into Gascoine, nor hang; and such other, do 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 allay, if the general rude­ness of the time, the King's injurious provocations, and the passions of cholerick 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 Kingdom 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 Counsels to conform to the Laws; and in maintaining that trust that was reposed in them, in keep­ing off such sinister Counsels and invasions as might violate the Laws and Liberties, or hinder the current 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 original, was Democratical, mixt with an Aristocracie, 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 Forreign parts, and came over hither, they came in a warlike manner, under one conducter, whom they called a King; whose power, whatever in the War, yet in time of peace was not of that height as to rule alone; I mean, that whereas the Lords for­merly had the principal executory power of Laws setled in them, they never were absolutely devested of that power by the access 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 concur, the people general­ly sided with the Lords, and so in conclusion the King suffered in the quarrel. From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times. Nor did nor could the Norman Williams shake off this co-partnership, but were many times, as well as other ensuing Princes, perswaded against their own minds and plotted desires. Nor can it otherways be supposed where Councils are setled; for whereto serve they, if (notwithstanding them) the King may go the way of his inordinate desire? If the Lords then did appear 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 is noised, for them (who are equally, if not more entrusted with the Common-wealth than the King, by how much [Page 139] the Counsellors are trusted more than the Counselled) 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 War. It is 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 add to what hath been already said, first, that Knight-service was for the defence of the Kingdom principally. Secondly, that the greatest power of Knight-service rested with the Lords, not only in propriety and ownership, but in point of direction for the benefit of the Commonwealth; and lastly, that the state of the times now, was such as the Kingdom was oppressed by strangers Counsels, and the Counsels of the Kingdom rejected; that instead of Law, Garrisons of strangers ruled; that no man could own his own; that the Subjects were looked upon as enemies; and of all this the King made the principal instrument, who had ruled and over-ruled in this man­ner, and so was resolved to continue. I shall leave it to the better judge­ment of others, what other healing plaister was to be had for such a sore. Albeit it cannot be denied, that more due respects might have been ten­dred to Kingly dignity than was in those times practised: And yet there was a difference also in the occasions of War; for certainly that last War with Edward the second, was more fatal, and yet less warrantable; and in the issue declared that there was more of the Queen therein than of the Lords, who knew a way of removing Favourites from the King, with­out removing the King from the Kingdom, or driving him out of the World. In all which nevertheless, it cannot be concluded that the Lords party was encreased more than in the former Kings times; for the loss of the field in Henry the Thirds time against the Prince, kept them in awe all the succeeding Reign (although they were not then tongue-tyed) and their second loss against Edward the Second, which was yet more sharp, questionless quelled their spirits (although they lost no right thereby) and encreased the Kings party much by the access to the Crown of the servi­ces of such as held of those Lords that were attainted or disinherited: And yet by a hidden providence, the King was little the better when it came to the pinch: For when Edward the second's Queen came from beyond the Seas, though with but a small force, all forsake the King; neither re­garding the former terrour of the Army of a King, nor the right or ser­vice, nor Oath of Fealty, nor Promises, nor Laws, nor other Engage­ments; and so the King becomes a prey to an enraged woman; or, which is worse, to a jealous Wife: So little can the name of a King do, when his person is despised; and so vain for him to trust in his Militia, that hath al­ready disarmed himself of the hearts of his Subjects. The sum then of all the labours of the Nobles during these times will rest in this, that they won the day, and yet lost the field: although they lost their own blouds and Estates, yet they saved all to the people, and left Laws in force, able to debate with Prerogative in the hand of any King that should succeed. Thus stood the matter in fact upon such grounds as it had, the validity whereof it is not my work to censure neither by the ballance of Law or Gospel, but leave it as a sore time, that scarce will endure touch, nor bear a King further than he was good or brave.

CHAP. LXVI. Of the state of the English Clergie until the time of Edward the Third: And herein concerning the Statute of Circumspe­cte agatis, Articuli Cleri; and of general Councils, and Na­tional Synods.

IT was a time of much action throughout the whole Christian State; and Rome now having attained to its full glory, began to be eyed on all parts, as an irregular motion crossing all affairs, that it may like the sole Empress command all, and be controuled by none; and this wrought some stirrings in France, complainings in England, and facing between the Emperour and the Pope. M. Paris. 720. How chargeable this was to the Pope's Trea­sury it is not material, but it occasioned, or was pretended to be the occasion, of all the intolerable exactions ensuing; there being scarce one year passed over without some extraordinary exaction levyed upon the Church-men, either by Provisors, Tenths, Procurations, Levies for the Holy War, Quindizms, Benevolences, or other such like; and where mo­ney was not to be had, by levies of Ornaments, or of rich Apparel, by intimation, begging, perswading, commanding, threatning; and in this course they continued till they had out-faced shame it self, and that the whole Law of Rome became comprehended in this one, Quicquid libet licet. In general therefore the Church of Rome cannot be said to thrive during these extorting times, although Rome did; for if the Laity were pillaged by the King, the Clergie much more both by Pope and King: if the one complained, the other cried: the one sometimes found re­lief from the King, but the other was helpless; for the Pope had no Ears to hear, nor the King Hands to help. M. Paris. He neither durst nor would cross the Pope, although the Clergie told him, that by these exactions they were impoverished in such manner, as they were disabled to do him service for their Lay-fees. Thus Rome becomes a burthen to Rome, and the Members weary of bearing their Head. Hereafter must the Pope beware of falling out with Kings; for the English Clergie now, though late, see, that all is not Gold that glitters; nor is it any great priviledge to be the Pope's men, further than the Pope will be a good Master, but this was not to be expected. Popes were grown so excellent, as they could not amend; and England so enamoured of them, as it is become their verè hor­tus deliciarum, M. Paris. as the Pope called it, when he saw the rich vestments of the English Church-men; and therefore they must now be contented to be the Pope's viands as often as his hungry maw doth call, or otherwise they must fall out. An excellent posture of affairs, and brave preparative to dispose the hearts of all sorts for entertainment of the easie yoke of Christ's government, which was now at the door, and ready to be revealed! Ne­vertheless, poor and mean as the Clergie was, they had courage enough not onely to stickle both with King and people for their own liberties, but also to invade the liberties both of the Crown and Commons; having this advan­tage, that they had to do with a King and people that were two; and themselves well seconded by the Pope, that had no less power in those times of publick distraction, and was bound to serve the Cattle well that yiel­ded him so much milk. The particular matters of debate may appear [Page 141] in their Paper of Grievances composed in Henry the third's time, and their Resolutions thereupon: Vid. Addit. Baronius An­nal. 1306. their Complaints were renewed again in the time of Edward the first (if we may give credit to Baronius) after the Sta­tute of Circumspecte agatis. To the end therefore that the whole may lie be­fore us, I shall set down the matter or substance of both these Papers seve­rally, in regard they sound much alike; and note the difference: all which I shall do, to the end that it may more plainly appear what the Church-mens Idaea was, and how far the common Law and King's Prerogative would agree thereto.

• 1. That the Church-possessions in their vacancies are wasted, and that Es­cheators do not onely seize the personal Estate of the Abbot or Prior deceased, but such Corn in the Barn, and other Goods belonging to the houses, for their maintenance;
  2.
  as also the profits of Churches impropriate.
• 3, & 4, & 5. Elections are either disturbed by the King's Letters prece­ding, or by delay of the Royal assent subsequent to the said Elections.
• 6. The Lay-power, without the advice of the Clergie, do put in, eject, or restore Incumbents to Benefices void.
• 7. Prelates are summoned to answer to the Lay-power, in the Writs Quare excommunicavit, and Quare non admisit.
• 8. Clerks are distrained in their Lay-fees, to answer before the Lay-power in Action of Debts, Trespass, or other personal Actions; and in case they have no Lay-fees, the Ordinary is distrained by his Barony to cause the Clerk to ap­pear.
• 9. The Laity are forbidden to take Oath, or to inform upon Oath before the Prelates, and to obey the Prelates commands in such cases.
• 10. Persons taken and imprisoned upon Excommunication, are ordinarily dismist without satisfaction to the Prelate; and sometimes are not taken by the Sheriff,
  11.
  notwithstanding the King's Writ: And as well the King as his Officers do ordinarily communicate with such as are excommunicated,
  12. & 33.
  and likewise com­mand others to communicate with them.
• 14. Clerks imprisoned for Felony are refused to be delivered to the Ordi­nary,
  13.
  unless upon security to appear before the Justices in Oyer; and sometimes are hanged before their Ordinary can demand them; and sometimes their heads are all shaven,
  15.
  that they may not appear to be Clerks.
• 16. Justices itinerant do imprison Clerks defamed for Felony, or otherwise out-law them if they do not appear. And otherwise proceed against Clerks af­ter their purgation before the Ordinary.
  17.
• 18. The Lay-power seizes upon the Estates of Clerks degraded for Crimes.
• 19. Clergie are compelled to answer and give satisfaction for offences a­gainst the Forest-Laws before the Lay-power:
  20.
  And in case of default, the Bishop by distress is compelled to order satisfaction,
  21.
  as well in such cases, as in personal Actions.
• 22. Priviledges of Sanctuary are invaded by force.
• 23. Executors of Bishops are hindred from administring the Estate without License first obtained from the King.
• 24. The King's Tenants Goods are seized after their decease by the King's Bayliffs.
• 25. Intestates goods are seized by their Lords, and their Ordinary hindred from Administration.
• [Page 142] 26. The King's prohibition passeth in case of Tythes and Chappels.
• 27. The like in cases of Troth plight, Perjury, Cerage, Heriet, or other Church-duties, as money for reparations of Churches, and fences in Church-yards, pecuniary punishment for Adultery,
  28.
  and costs of suit in Ecclesiastical Court,
  40.
  Sacriledge, Excommunication for breach of the Liberties of the Church,
  29.
  contrary to the Grand Charter.
• 30. In cases of prohibition, if the Ecclesiastical Judge proceed contrary to the same, he is attached, and compelled to shew his Acts in Court; if the Lay-Judge determine the cause to be Temporal, the Ecclesiastical Judge is amerced; if he proceed against the prohibition, and it is tryed by Witnesses of two ribaulds: and in case it be found for the Ecclesiastical Judges cognizance, yet there is no costs allowed for such vexation.
  31.
• 32. That Jews in matters Ecclesiastical aforesaid, are by the King's prohi­bition drawn from the Ecclesiastical Judge unto the Lay-Magistrate.
• 34. Question about Lands given in Frankalmoin, are tryed in the Lay-Courts; and by reason of such Tenure,
  35.
  the owners, though Clergie men, are com­pelled to do suit at the Lay-Courts,
  36.
  and are charged with impositions, and are distrained hereunto,
  37.
  although the Lord have other Land of the Donor in Fran­kalmoin subject to his distress.
  38.
• 39. Prelates summoned to higher Courts, are not allowed to make Attorneys to appear for them in the inferiour civil Courts.
• 41. Grantees of Murage, or other unwonted impositions, compel the Church-men to pay the same.
• 42, & 43. The Clergie are charged with Quarter, Cart-service, and pur­veying.
• 44. The Chancery sendeth out new Writs contrary to the liberties of the Church, and the Law of the Land, without the assent of the Council of the Kingdom, Princes and Prelates.
• 45. The King doth compel the Clergie to Benevolences to the King at his Voyage into foreign parts.
• 46. Amercements granted to Clergie-men, are turned into Fines by the Justices, and by them taken.
• 47. Clergie-men are fined for want of appearance before the Justices itine­rant, and of the Forest, upon common summons.
• 48. Quo warranto's granted against the Clergie for their Liberties, and the same seized, unless they be set down in express words in their Charter, not­withstanding that by long custom they have enjoyed the same,
  49.
  and many times contrary to express grant.
  50.

This is the sum of their Paper of Grievances; and because they found the King either wilful or unconstant, they resolve upon a Remedy of their own, by Excommunication and Interdiction, not sparing the persons of any principal or accessory, nor their Lands, no not of the King himself: and for this they joyn all as one man. Now what scare this made, I know not, but Henry the third in the Stat. of Marlb. and Edward the first in his Stat. at Westminster, and other Statutes: the first spake fair, and seemed to re­dress some of these complaints: as also did Edward the second; and yet the Common Law lost little ground thereby.

That which Henry the third did, besides his promises of reforming, was done in the Stat. of Marlbridge.

The successors of Abbots, Marlbr. c. 29. Priors, and Prelates, &c. shall have an Action of Trespass for Trespasses done nigh before the death of their [Page 143] decessors, upon the Estates of their Corporations. And shall prose­cute an Action begun by their Predecessors. And also shall have an Assize against Intruders into any of the Possessions belonging to the said Corporations whereof their Predecessors died seized.

This might seem a remedy provided against the first Malady complain­ed of, and questionless bound all but the King; and so might perchance a­bate somewhat the edge of that Article. But it being the Clergies reach to grow rich, and the Pope's cunning to help on that Work, that they might be as stores for supply of his Treasury; and had forbidden Abbots and other Prelates, &c. the liberty of disposing their Estates by last Will: Kings therefore as supreme Patrons to these bodies in their vacancies, used to seize all the Estates of the Prelates, with the Temporalities, to their own use, as well to preserve the Riches of the Kingdom to it self, and the posses­sions of such Corporations from spoil, as to be a cloke of their own cove­tousness. And under the Estates of the Prelates, or Heads of these Cor­porations, all the Goods and Chattels belonging to the said Corporations were comprehended, Fits. Abbe. 25. in regard that all was by Law adjudged to be in the sole possession of such Head, and without whom all the rest were accoun­ted but as dead persons.

No Clergie-man is bound to attend at the Sheriff's Turn. Marlbr. c. 10

William the Conquerour first exempted the persons of the Clergy from attendance upon Temporal Courts; yet they were still urged thereto, Gloss. p. 428. and especially by a Law in Henry the first's time; but by this Law they are dis­charged, Ll. Hen. 1. c. 31. and in some measure a provision made against the grievance in the 39th Article before-mentioned. These amends we find made to the Clergie by Henry the third, besides his confirming the Grand Charter: And his Son Edward the first pursued the same course, especially in his first times, when he was but tenderly rooted; as may appear in the Sta­tute of West. 1.

Clergie-men nor their Houses shall be charged with Quarter, West. 1. cap. 1. nor their Goods with Purveyance or Cart-service, under peril of imprisonment, and damages by action or imprisonment.

The great endowments of Lands, Rents, and Revenues given to the Church-men by the Laity, was for the maintenance of Hospitality and works of Charity. The Founders and Benefactors hereby obtained a right of Corody or Entertainment at such places, in nature of Free-quarter; which in the necessitous times of Henry the third, became so common, that every one that had power never questioned right, and the King above all the rest. By means whereof, the Church-revenues were exceedingly wasted: for remedy whereof, all Offenders are by this Statute made liable to fine and imprisonment, and double damages in case of Action of Trespass; the King onely excepted, against whom they had no defence, but would ra­ther have won him to have been their defence against the exactions from Rome that continually plagued them.

A Clerk taken upon Felony, West. 1. cap. 2 [...] being demanded, shall be deli­vered to the Ordinary; but being indicted, shall not be dismis­sed by the Ordinary without due purgation.

[Page 144] With due respects to the judgment of those grave and honourable per­sons of the Law, Co. 2. instit. 164. it seemeth to me that before the making hereof, the use was, Stams. 130. that if a Clerk was defamed, or appealed by an Offender for Fe­lony, before Conviction, he was forthwith imprisoned. Nor could he be delivered unto the Ordinary upon demand before Inquest taken, un­less upon sufficient Security to endure the Tryal before the Judges itine­rant; which thing was not easie to be had for a Clerk, as times then were. This Law therefore was made in favour of the Clergie, who requi­red that such as were Clerici noti & honesti, should forthwith upon their apprehending be sent unto their Ordinary; and those which were vagi & incogniti, M. Paris. ad­dit. fol. 200, 206, 207. should upon demand be delivered to be judged by their Or­dinary freely, and non expectatis Justiciariis quibuscunque. Such wan­dring Clerks therefore the Clergy will have delivered before Inquisition, if demand be made. Nevertheless, because the Indictment passed many times before the Demand came; for by the fifteenth Article of the Clergies Complaints foregoing, it appears that the Lay-Judge made more than ordi­nary speed, for fear of stop: This Law provided that such also should be delivered to their Ordinary, and that due purgation should pass before the party were delivered; and in case the Ordinary neglected his duty here­in, he was liable to a Fine or Amercement. Briton. 4. f. 11. Thus is Briton to be under­stood in this point; whereas Bracton speaking of such as are convicted, Bracton, lib. 3. fol. 123. affirmeth, That if demand be made of such as are not indicted (for of such he speaketh) they ought to be delivered without Indictment: I suppose he meaneth by the Church-Law; for till this Statute the Tempo­ral Judges practice was otherwise, as appeareth by the fourteenth Article of the Clergies Complaint foregoing; and so by this Law, the fourteenth and fifteenth Articles of the Clergies Complaint are answered.

Disturbers of the Freedom of Elections fined. West. 1▪ c. 5.

With submission to the judgment of others, I suppose that this was fra­med principally for the satisfaction of the Clergies Complaints in the third, fourth, and fifth Articles foregoing: and I am the rather induced hereto, because as touching Elections into Temporal places of Government, seve­ral Laws are especially framed; such as are Elections of Sheriffs and Coro­ners, whereof the one is West. 1. cap. 10. the other Artic. super Cart. cap. 10. and no Law is especially made as touching the Elections of the Clergie, if not this.

Ordinaries having the Goods of the Intestate, West. 2. c. 19. shall answer his Debts.

Originally the Goods of the Intestate passed by a kind of descent to the Children: afterward by a Saxon Law, the Wife had her part; and this continued all the Normans time. But now the strength of the Canon-Law growing to its full pitch, after a long chase attached the prey. In Henry the first's time they had gotten a taste; for although the Wife and Children, or next of kin, had then the possession, yet it was for the good of the Soul of the deceased; and the Ordinary had a directing power therein, and so was in the nature of an Overseer, and somewhat more. Afterwards in the time of King John, the Clergie had drawn bloud: for though the pos­session was as formerly, yet the dividend must be made in the view of the Church; and by this means the dividers were but meer instruments, and [Page 145] the right was vanished into the Clouds, or, as the Lawyers term it, in Abeyance. But in Henry the third's time, the Clergy had not onely got­ten the game, but gorged it: Both Right and Possession was now become theirs, and wrong done to none but the Clouds. This was not well di­gested before Edward the first recovered part of the morsel, and by this Law declared the use to be for the benefit of the deceased. And thus the one was satisfied in having what he used not, the other, in using what he had not.

But these are but gleanings; the Law of Circumspecte agatis brings in a Load at once: For the Clergie being vexed with the passing of the Sta­tute of Mortmain (whereof hereafter when we come to speak of the Clergies losses) they make grievous complaints of wrongs done to their priviledges. And after six years the King is at length won, and passed a writing somewhat like a grant of Liberties, Antiq. Brit. 194. which before-times were in controversie: and this Grant, if it may be so called, hath by continuance usurped the name of a Statute; but in its own nature is no other than a Writ directed to the Judges, in substance as followeth:

Take good heed that you do not punish the Bishop of Nor­wich and his Clergie, Circumspecte agaits. if they hold plea in Court-Christian of things merely spiritual: for in such cases the Ecclesiastical Judge hath cognisance, notwithstanding the King's prohibition.

It is therefore neither Grant nor Release, but as it were a Covenant, that the Clergy shall hold peaceable possession of what they had, upon this ground, that the King's prohibition, hath no place in such things as are merely spiritual. So as hereby the Clergy got a Judgement against the Crown by confession, and an Estoppel, upon this maxime, Circumspect [...] agatis. that spiritual things belong to spiritual men, into which rank the King's person cannot come: thus thought they; but what are spiritual causes, and why so cal­led? are they such as concern spiritual persons and things? this was the old way: mark; but if we bring into this Category, Adultery, Fornica­tion, Incest, &c. we shall mar [...]all. Linwood tells us, that mere spiritualia are such as are sine mixtura temporalium: there may be somewhat in this, though I cannot find it; nor can I make out the sence of the term any other way, but to limit it to such things which by common custom the Ecclesiastical Judge had cognizance of: for otherwise neither King nor Law ever intended it to be expounded by the Canon, nor was it the intent of this Writ, Law, or License (call it what you will) thus to conclude, as the particulars following will manifest.

Fornication, Adultery, and such-like, punished sometimes up­on the body, and sometimes upon the purse.

These crimes the Saxons punished by the Temporal power, as I have already shewed. The Normans continued this course, if we may believe the Conqueror's Laws, Ll. Gulielm. c. 14, 19, 371. which gave the fine in such cases to the Lord of the Delinquent. And it is confessed, that Henry the first and the se­cond continued it; as the Clergies own complaint, just or unjust, doth witness. And what course was holden in the time of King Steven and John, is to me unknown; nor is it much to be regarded, M. Paris addit. fol. 201. art. 2 [...] seeing the latter did he cared not what, and the former to gain the good will of the Cler­gie regarded not what he did. The custom therefore cannot be made [Page 146] good for the Clergie, much less to punish the bodies of Freemen in such ca­ses, it being contrary to the Grand Charter; never asked by the Clergie, formerly, nor no complaint before now for denial: for my part therefore I shall not apprehend it of a higher nature than the King's Writ, which in those days went forth at random, if the 44th Article of the Clergies, com­plaints foregoing be true. It being so contrary to the common sence of Parliament to give the bodies of the Freemen to the will of the Clergie, Circumspecte agatis. to whom they would not submit their Free holds. But the Writ proceeds in enumeration of particulars.

Reparations and adornings of Churches, and Fences of Church-yards. Violence done to a Clerk, Defamation to reform, not to give damage. Perjury, oblations, payments of Tythes between Rector and Parishioner. Right of Tythes between two Rectors to a fourth part of the value. Mortuaries due by custom. A Pension from a Rector to a Prelate or Advocate.

The most of which were under the power of a prohibition in the time of Henry the Third, who was King but yesterday, as the Articles of com­plaint formerly set down do manifest. Nor had the Clergie ever better Title than connivance of some such favourites as King Steven, whose Acts may, peradventure, be urged against Kings, but not against the people, unless their own act can be produced to warrant them. The learning, in the Princes case, will (I suppose) admit of a difference: for it can never be made, out, that the King's Council in Parliament was the Magnum concili­um Regni, Coke lib. 8. but onely the House of Lords; and therefore whatever passed in Parliament by their onely advice might bind the King, but could never reach the Commons nor their Liberties. And thus the Grand Charter in the first conception was conclusive to the King, but was not the act of the Parliament; because the Parliament cannot grant a Charter to it self of that which was originally custom. And therefore this Law, however countenanced, can never be concluded to be other than a Permission; not onely because it was never the Act of the Commons of England, but because it is contrary to the liberty of the Freemen. And it is beyond all imagination, that the Commons should out themselves from the protection of the Common-Law, and yoke themselves, their Free-holds, and Estates, under the bondage of the Canons; nor ought such a construction to be admitted, without express words to warrant it. As for the conclusion, it is worse, and not onely dishonourable to the King in binding his Arms from protecting his Subjects by the Common Laws, and so in some respects making them Outlaws; but dishonoura­ble to it self, whilst it makes Prohibitions grounded upon Laws to be nul­lities, by a late trick of non obstante, which was first taken up by the Pope, then by Henry the third, and by this King granted to the Clergie: and thus are all set at liberty from any rule but that of Licentiousness. Ne­vertheless, this Law did thrive accordingly; for we find scarce any foot­steps in story of any regard had thereof till it became grey-headed. For it was not long e're the King stood in need of money, and was necessita­ted to try the good wills of the Clergie more than once: this occasioned them to be slow in answer, Antiq. Brit. vit. Winchel­sie. and in conclusion to deny that they should aid the King with any more money, Papa inconsulto. The King hereupon [Page 147] disavows the Clergy, and leaves them to the Romish oppressions, which were many; and then the Clergie rub up all old sores, and exhibit their complaints to their holy Father, to this effect: Baronius An­nal. an. 1306.

• 1. That the King's Justices intermeddle in Testamentary causes, accounts of Executors, and cognizance of Tythes, especially to the fourth part of the Living.
• 2. That the Clergie were charged to the King's Carriages. That the King's Mills were discharged from paying of Tythes. That Clerks attending on the Exchequer, were necessitated to non-residency. And that after their decease, their Goods were seized till their acounts were made. That Ecclesiastical possessions were wasted during vacancies.
• 3. That Clerks were admitted to free Chappels by Lay men.
• 4. That the King's Justices took cognizance of Vsury; Defamation, violence done to Clerks, Sacriledge, Oblations, Fences of the Church-yards and Mor­tuaries.
• 5. That prohibitions are granted without surmise.
• 6. That Clerks are called to answer in the King's Court for crimes, and be­ing acquitted, the Informers escape without penalty.
• 7. That Clerks are not allowed their Clergie.
• 8. That after purgation made, Clerks are questioned in the King's Court for the same offence.
• 9. That persons in Sanctuary are therein besieged.
• 10. That the Writ de Cautione admittenda issueth forth, although the Church be not satisfied; and excommunicate persons being imprisoned, are en­larged in like manner.
• 11. That Debts between Clerks due, are determined in the temporal Courts.
• 12. That Bishops are compelled by Distress to cause Clerks to appear in Lay-courts without cause.
• 13. That the Church loseth it's right by the ceasing of Rent or Pension by the space of two years.
• 14. That Nuns are compelled to sue in the Lay-courts for their right in pos­sessions befalling by decease of their Kinred.
• 15. That Churches are deprived of their Priviledges till they shew Quo warranto they hold them.
• 16. That Ecclesiastical Judges are stopped in their proceedings by Sheriffs and great men.
• 17. That Bishops refusal of Clerks presented are examined in the Lay-courts.
• 18. That Patrons of Religious Houses do oppress them by extream Quar­ter.
• 19. That Bigamy and Bastardy are tried in Lay-courts.
• 20. That the King suffers his Livings to be vacant for many years.
• 21. That the Clergie are wronged by the Statute of Mortmain.

Here's all, and more than all that's true; and more than enough, to let the Reader see that the Writ Circumspecte agatis was but a face put on for the present, after laid aside, and the Clergy left to the bare Canon. They likewise shew what the Clergy aimed at: and in that they did not obtain, it was to be attributed to the resolution of the Laity, and not any neg­lect in themselves; for the Arch-bishop died in the service, Antiq. Brit. and it is thought that grief for these matters was no little cause thereof. But the times within a while grew troublesome, and the King in pursuit of [Page 148] the French Wars, being unadvised in his way, angred the people by his ar­bitrary levie of Men and Money, Articuli Cleri. as it brought forth a State-scoul, little inferiour to a Quarrel. And to pacifie the Clergie, he granted them the Writ de consultatione habenda in all matrimonial and testamentary cases, Stat. de con­sultat. 14. E. 1. which were of their least doubted priviledges; and this qualified the first Article of complaint next foregowing, if such cause they had of com­plaint; and this was all that the Clergie got at Edward the first's hands. Edward the second was a man that was neither well-affected to Rome, nor weak in spirit; and yet so unhappy, that his way neither promised good success, nor ever had it; and so he became a Servant unto the hu­mours of his Servants, to keep his head above water; but especially af­ter he was chased by the Scots, and quite out of breath, he calls for help of all, but first of the Clergie, and bespeaks them with the Ordinance of Articuli Cleri; wherein he gives some satisfaction to the complaints formerly mentioned, which it seems by Baronius, were exhibited in Par­liament.

Ecclesiastical cognizance extendeth unto Tythes, cap. [...]. Oblations, and Mortuaries, and to pecuniary recompence.

In the first times, neglect or denial of Church-duties was punished in the King's Court by Fine. Afterwards the Bishop was joyned in that Work, and the Tythable Goods were seized; eight parts whereof were taken to the Lords and the Bishops use by moyeties, Ll. Alfred. c. 9. Ll. Edw. c. 9. Ll. Canut. c. 8. a ninth part left to the Owner, and the tenth to the Church. Nor had the Bishops any pe­culiar Courts of cognizance of causes, till the times of the Normans; nor as yet in those times had they power to all intents: For though it be true, that the Roman Tribute of Peter-pence was allowed by the Conquerour's Law to the Bishop's Court, yet we find no Law for Tythes and other pro­fits to be recovered by the Ecclesiastical Court, Ll. Gul. 20. c. Spicileg. 180. till about the end of Henry the second's Reign, or King Steven's time. For at a Council at London in Henry the second's time, it was ordained, that three Summons in the Pope's name should be made to such as payed not their Tythes; and in case they then refused, Binius, Tom. 7 fol. 661. An. 1173. they should be Anathema. And after that time, in a Council at Oxford under Steven Archbishop of Canterbury, it was decreed, that the Laity should be entreated first to pay their Tythes, Articuli Cleri. and then if necessity require, Baronius, Annal. 1222. cap. 19. that they should be compelled by Ecclesiastical censure. So as their power crept up by degrees in recovering of Church duties, as it did in Testamentary matters; and at length Henry the third, worn and spent with the Barons Wars, about his latter end yielded to Boniface the Archbishop his importunate demands; and first gave liberty to the Clergie to be their own Judges: and yet the Lay-Judges, although divers of them were Clergie men, did not suddenly forbear, till this Law came, which gave some satisfaction to the first and fourth Articles of Complaint foregoing.

Ecclesiastical cognizance extendeth not to a fourth part of the Tythes of any Living, cap. 2. nor to pecuniary mulcts for sin, saving by way of commutation.

The Complaint of the Clergie in Henry the third's time, was against the King's prohibition in case of Tythes indefinitely: for in those times, and af­terwards in Edward the first's time, the King's Court had the cognizance of [Page 149] all Tythes; and therefore in the Statute of West. 2. c. 5. the Writ of In­dicavit was allowed in case of right of any portion of Tythes; yet the Church still gained ground, and about, or before the death of Edward the first, Artic. 1. the Temporal Judge had yielded unto the Clergie the cognizance of a portion of Tythes under the value of the fourth part: for in the Article next foregoing, the Clergies complaint was, that the Kings Justices held cognizance of the fourth part; and here they were confined thereto by this Law, which the Clergie could never remove.

For violence done to Clerks the offender shall render damage in the Kings Court; but Excommunication, cap. 3. Penance, and Com­mutation shall be in the Bishops Court.

The Canon-Law had an ancient claim to the protection of Clerks, both as touching their persons and estates; and prevailed so far, as they were thereby emboldened to offer violence unto others. But as I formerly shewed, by a Law in Henry the Second's time, the Temporal Judge resu­med his original power; and this became a sore evil between the Clergie and Laity: Articuli Cleri. for though it were allowed that Clerks should not be sued but before the Ecclesiastical Judge in such cases, yet it was no warrant for the Laity likewise to be called before the Ecclesiastical Judge in such cases; and therefore the Clergies complaints shew that the matter was doubtful, and that the Lay-Judge generally maintained his Jurisdiction, although sometimes he disclaimed it; as it may appear in the case of a Trespass in the nature of a riot committed upon the Priory of St. John's of Jerusa­lem, in the seventh year of Henry the Third, Fits. Herb. 7 Hen. 3. prohibition 30. when as it was adjudged per Curiam, that it belonged to the Ecclesiastical Court to punish. But in Edward the First's time, by the Ordinance of Circumspecte agatis, and Articles concerning prohibitions, the difference was made between dama­ges, and pro reformatione, and the same affirmed by this Law; and so the matter setled, and the fourth Article of the Clergies complaint in some measure was satisfied.

Defamation within Cognizance of the Ecclesiastical Court, cap. 4. and corporal penance therefore, and Commutation.

The words are general and peremptory, with a non obstante the Kings prohibition; and yet the Law afterwards restrained the sence to defa­mation for crimes, or offences triable in the Ecclesiastical Court: and this gave further satisfaction to the fourth Article of the Clergies com­plaint foregoing.

Tythes of new Mills may be recovered in the Ecclesiastical Court. cap. 5.

This Tythe of Mills was a new encroached Tythe never mentioned in any former Law of this Kingdom, nor demanded by the Synod at Lon­don, Anno 1173. which mentions Fruit-Trees, young broods of living crea­tures that are tame, Herbage, Butter, Cheese, with other particulars, but mentions not new Mills. It is true, Bineus Tom. 7. 661. that anciently Mills paid Tythes; but such they were, which were ancient, Ll. E. c. 8. & 9. Articuli Cler [...] ▪ and had paid the same by custom; and such as by Law in the Confessors time were declared to be given a Rege, Baronibus, & populo. But by the second Article of the Clergies com­plaint [Page 150] next foregoing, it appears that the Kings Mills refused to pay this Tythe: now whether the new Mills were called the Kings Mills, as being made upon the publick streams by the Kings license; or whether the Mills newly made within the Demesnes of the Crown, it is not to be in­sisted upon; but it is evident, that till this Law made, the new Mills would not Tythe their labours.

One and the same matter may be tryed at the Common-Law, cap. 6. after Sentence in the Spiritual Court, in divers respects.

The great sore that was complained of, was, that the Clergie after pur­gation in the Ecclesiastical Court made, were proceeded against in the Kings Court in case of breach of peace or Felony, as may appear out of the 16th Article of the Clergies first complaints, and the 8th Article of that taken out of Baronius. Nevertheless, the present Law subjoyns an example of the questioning a Lay-man in the Ecclesiastical Court, in case of violence done to a Clerk, as a matter which may be tryed in the Ecclesiastical Court, and yet reviewed by the Kings Court.

The Writ de Excommunicato deliberando shall not issue forth, cap. 7. but upon evident breach of the Kings Liberty.

This might be intended in satisfaction of the Tenth Article of the Clergies complaint in Baronius, and the Tenth Article in the Clergies complaint first recited; although that complaint both in the 10, 11, 12, and 33 Articles, seem to be but clamour upon Officers, and not the Kings Court of Justice.

Clerks Officers to the Exchequer are to be corrected by their Ordinaries; cap. 8. and yet not tyed to residence during their attendance on the Exchequer.

This is in part an answer to the second Article of the Clergies last com­plaint, and a justification thereof, as a thing that is pro bono publico.

Clergie-mens Goods shall not be Distrained either in the High­way, or Sanctuary-grounds, Articuli Cleri. unless such as have been of late purchase. cap. 9.

The complaint exhibited in Henry the third's time, and the 8th Arti­cle, was only in ordinary personal Actions; but in the complaint made in Edward the second's time, Article 12. is, that it is without cause that they are so distrained. This Law yieldeth them somewhat, viz. immunity from distress within their ancient possessions, which had been by ancient custom priviledged; but yields nothing as touching their latter purchased Lands, because they had no such custom.

High-ways and Sanctuaries shall be free for such as abjure, so as they shall neither be restrained from liberty, cap. 01. nor necessaries kept from them. Felons may make free confession to the Priest without danger.

[Page 151] The grievance in the 22th Article of the Clergies complaint in Henry the Thirds time, and the ninth in that of the times of Edw. 2. are hereby relieved; provided that the Delinquent keeps himself in due order.

Houses of Religion shall not be oppressed with Corodies, Pen­sions, cap. 11. or entertainments of great men.

This answered the grievance in the 42. and 43. of the first complaint, and the 18th of the latter, and in effect little other than what was former­ly setled by West. 1. cap. 1.

The Kings Tenant may be cited before the Ordinary out of their own Town; and if Excommunicated for want of appear­ance, cap. 12. the Writ de Excommunicato Capiendo shall be a­warded.

A remedy this was against the grievances in the 12 and 33 Articles of the first complaint, and in the 10th Article of the last schedule of com­plaints. And thus the Clergie have gotten the day of the Kings Te­nants, which they had been striving for ever since the Conquest, as may appear by what hath been formerly said; and now the Kings Tenants are in no better condition than other men, Articuli. Cleri. viz. they may now be Excommu­nicated without the Kings license: nor is the answer Nunquum fuit nega­tum to be referred to the point of Excommunication; for that power was denyed them but unto the citing them out of their own Parish, which cannot be found to be denyed to the Clergie, by any thing that yet ap­peareth.

A Clerk presented and found unable by the Ordinary, cap. 13. shall be tryed again by the Ecclesiastical, and not the Lay-Judge.

Although the fitness or sufficency of the party presented, is to be exa­mined by the Ordinary, yet the Civil Magistrate hath power in action brought to enquire and determine whether the Ordinaries work was rightly done; and so the 17th Article of the last complaint answer­ed.

Elections shall be free. cap. 14.

The Laws was of the same with this in the Stat. W. 1. cap. 5. which see before; and it may be that the iniquity of the times continued notwith­standing, and so occasioned the renewing of this Law.

A Clerk having taken Sanctuary shall not be compelled to adjure. cap. 15.

Nor after confession of the Crime, or appealing others before the secular Judge, shall be denyed his Clergie. cap. 16.

Although the Temporal Courts proceeded not so far as to pass sen­tence against a Clerk that had taken Sanctuary; yet they pro­ceeded to enquiry, as may appear by what was said formerly con­cerning [Page 152] the Stat. West. 1. cap. 2. and therefore though this Law in the 15th Chap. alloweth that a Clerk in Sanctuary shall enjoy his Ecclesiastical liberty, yet the words legi Regni se reddens are interposed; and the reason is, because the King upon Indictment found, had right to the Delinquents goods, 7 E. 2. Fits. tit. for­faiture 34. and profits of his Lands, until due purgation; and then his Lands were by a Writ out of the Chancery to be restored to him again: nor could any purgation regularly pass before the party was Indicted.

No Religious House shall be charged with Tax to any Superi­our without the Realm of England; Stat. de asport. relig. 35. E. 1. nor shall send to any visi­tation out of England.

This was neither at the request of the Clergie, nor act of kindness in­tended unto them; but for the good of the Kingdom, to prevent the bleeding of the Treasure of the Kingdom into Foraign parts.

Patrons of Abbies shall have their custody during their vacancies. Mag. Charta cap. 35.

This was the ancient Law, now revived by the Clergies consent, and intended for the safeguard of the Revenues of the Houses, and their main­tenance; and therefore it is with a sicut superius dictum est, cap. 5.

The Goods of the Clergie freed from purveyance, unless they will. Stat. de prisis Edw. 2.

It was a favour given by Edw. 2. to the Clergie, to gain their good will after the death of Gaveston, the shameful defeat received in Scotland, and some particular testimonies of God's displeasure, whereof he began to be somewhat sensible.

Franchises holden by prescription or Charter confirmed, and Tryals by Quo Warranto allowed to be in Eyer. Stat. de Quo Warranto. 18 Edw. 1.

It was the common share of the great men, but especially of the Clergie, to have their Franchises exposed to the prey of the Eagles, or to such as hawked for them; and it is likely the King had not so easily for gone his prize, if all the fat had fall'n to his own share: but perceiving that more benefit came to his instruments than was meet, and himself little the better thereby; he sacrificed his Judges to the people, but it was to his own behoof, and so gained both credit and favour from the people, and profit to himself; and in some measure satisfied the 48, 49, 50. Arti­cles of the Clergies complaint in the time of Henry the Third, and the 15th Article of their last complaint.

Lands or Tenements aliened to a Religious house shall escheat to the Lord, Mag. Charta cap. 37. if the alienor take the same back to hold of that House.

The ground hereof principally was the prejudice done to the Lord by destruction of the Tenure, albeit that it had been an ancient grievance complained of in the Saxon times, That the Clergie were covetous, and [Page 153] swallowed down estates, and thereby weakned the Kingdom. But now they are become even cheaters, serving the turns of treacherous Tenants, that would give their Lands by compact with the Church-men, to receive them again from them to hold of the Church; which was a liberty that men thirsted after in those times, wherein the Church-men were more adored than their Images. Bracton, lib. 1. fol. 13. It seems this Law was made after Bracton's time, if that be true in the second Institutes: for he saith that a man may give his Lands to any one, Coke 2. Instit. super Magna charta, cap. 36. p. 74. & 75. whether Christian or Jew, or religious person, and no­thing shall hinder it but the special reservation of the donor; and yet he saith that such gift or grant taketh not away the right of the Lord Para­mount in his Tenure, Bracton. lib. 2. cap. 10. fo. 27. albeit the gift be in free Alms. Nevertheless it seemeth to be such restraint, that the Templars and Hospitallers were fain to find out a new way, which was to protect mens Tenements from ex­ecution of Law by levying crosses thereon, albeit the right of the Lords was not barred; Stat. West. 2. cap. 33. and therefore Edw. 1. provided a Law to make this also in nature of a Mortmain within the Statute made in the seventh year of his Reign, Stat. de Re­ligiosis 7 E. 1. called the Statute de Religiosis; by which it was enacted, that in case of such alienations in Mortmain, the Lord should have liberty to en­ter, if he failed, then the Lord Paramount; or if he failed, the King should enter, and dispose of the same; and that no license of Mortmain should be sued out, but by the mean Lord's assent; and where part of the premises remain still in the Donor, Stat. de A­mortizandis terris. and the original Writ mentioneth all the parti­culars. And thus at length was this issue for the present stayed, which hitherto wasted the strength of the Kingdom; M. West. An. 1280. Mag. Charta cap. 39. and by continual current emptying it into the mare mortuum of the Clergie, consumed the main­tenance of Knight service, by converting the same to Clerk-service.

No Judge shall compel a Free-man to make Oath without the Kings command.

So is the sence of the Law rendred by an ancient Authour; Miror. Just. cap. 5. sec. 3. and I hope I shall not wrong the Text, if I affirm, that the Ecclesiastical Judge was included within the equity, though properly he be not Balivus; for the Law intends to shew that it is a liberty that the Subject hath, not to be compelled to take Oath without the Kings especial command; and by consequence it sheweth also, that the King at that time, and until then, had the directory of Oaths; for it was an ancient Liberty given in the Kings Charters unto such as they pleased, viz. to impose Oaths, and to punish for breach of Oath; Malmsb. de gest. Reg. lib. 2. and this passed under the word Athae or Athas; and so Edmund the Saxon King gave to the Abbey of Glastenbury amongst other Athas & Ordulas; and the Church-men that first procured vacations from Suits of Law during holy times, procured a Law also to be setled by Edward the Saxon King, Ll. Ed. cap. 9. and Gunthurne the Dane, that Ordeal and Oaths should be forbidden upon the holy Feasts and lawful Fasts. And a won­der it is how it escaped the gripe of the Clergie so long, who catched at any thing that had but a glance of Gods worship in it. And if this were the Subjects Liberty, not to be compelled to Swear, surely much more not to be compelled to accuse himself, unless by the Law he be especially bound; Bracton, lib. 3. cap. 7. fo. 106. for it is Glanvil's rule, Ob infamiam non solet juxta legem terrae ali­quis per legem apparentem se purgare, nisi prius convictus fuerit, vel confessus in curia. But the power of the Clergie now was grown strong, and they begin to remember themselves; and that Oaths are of a holy regard, and they men for holiness best able to judge when, and to whom they shall [Page 154] be ministred, and therefore now they begin to enter their claim; and to make a sure Title, they get a grant from Pope Innocent to Steven Lang­ton Arch-Bishop of Canterbury, of a faculty of licensing administration of Oaths during the time of Lent; and he accordingly enjoyed it during the mad time of Henry the Third. But Edward the first quarrelled it, and left it questionable to Edward the Second, who being in his condition as a lost man, had less care of such smaller matters, and therefore allowed that his Judges of Assizes should be licensed by the Arch-bishop to admini­ster Oaths in their Circuits in the sacred times of Advent and Septuagessima: Antiq. Brit. Eccles. 209. and this course continued till Henry the Eighth's time. The Clergie ha­ving thus gotten the bridle, gallop amain: they now call whom they will, and put them to their Oaths to accuse other men or themselves, or else they are Excommunicated. Henry the Third withstood this course, if the Clergie-mens complaints in the times of that King, Artic. 9. be true; and notwithstanding the same, the Law holds its course; and in pursuance thereof, we find an attachment upon a prohibition in this form ensu­ing.

Put the Bishop of N. to his pledges, Regist. fo. 36. that he be before our Justices, to shew cause why he made to be summoned, and by Ecclesiastical censures con­strained Lay-persons, men or women, to appear before him to swear unwilling­ly at the Bishops pleasure, to the great prejudice of our Crown and Dignity, and contrary to the custom of the Kingdom of England. And thus both King and Clergie were at contest for this power over the peoples Con­sciences, to which neither had the right otherwise than by rules of Law.

Bigamists shall not be allowed their Clergie, Stat. Bigam. 4 Ed. 1. cap. 5. whether they become such before the Council of Lyons, or since; and that Constitution there made shall be so construed.

Whatsoever therefore their Synods in those times pretended against the married Clergie, it seemeth by this Law that they had Clergie that were married once and again; and yet before and after the Council, were admitted as Clerks in the judgment of the Law. But the general Council interposes their authority, and deprives them that are the second time married, of all their priviledges of Clergie. It was it seemeth twenty years and more after that Council, before the Church-men in England were throughly reformed; for either some were still Bigami at the making of this Law, or as touching that point it was vain; nor is it easie to conceive what occasion should after so long a time move such exposition, General Councils. the words of the Constitution being, Bigamos omni privilegio clericali declaramus esse nudatos. Now whether this slow Reformation arose from the defect in Law, or in obedience thereto, may be gathered from some particulars ensuing. First, it is apparent that the Canons of general Councils, eo nomine, had formerly of ancient times gotten a kind of preheminence in this Nation; but by what means, is not so clear. In the Saxon times, they were of no further force than the great Council of this Kingdom allowed by express act. For the Nicene Faith, and the first five general Councils, were received by Synodical confirmations of this Kingdom made in the joynt meeting both of the Laity and Cler­gie; and during such joynt consulting, the summons to the general Councils was sent to the King to send Bishops, Abbots, &c. but after that [Page 155] the Laity were excluded by the Clergie from their meetings, and the King himself also served in the same manner; the Summons to the gene­ral Council issued forth to the Bishops immediately, and in particular to each of them, and to the Abbots and Priors in general; by vertue where­of, they went inconsulto Rege, Bineus tom. 13 Ps. 2. p. 674. M. Paris. and sometimes Rege renitente, and appear­ed either personally or by proxie. Others came as parties, to give and re­ceive direction, or hear Sentence in matters tending to spiritual regards. And for this cause issued Summons even to Kings; as at the Council of Lyons aforesaid, M. Paris. An. 1245. it is said, that the Pope had cited Regis terrae, & alios mun­di principes, & dictum principem, meaning Henry the third: the matter was for assistance to the holy War, and to determine the matter between Henry the third and his Clergie men. And as in that case, so in others of that kind, Kings would send their Embassadors or Proctors, and give them power in their Princes name interessendi, tranctandi, communicandi & con­cludendi. First, of such matters quae ad reformationem Ecclesiae universa­lis in capite & membris, Bineus tom. 3. P. 2. pag. 913 & tom. 4. p. 1. pag. 21. then of such as concern fidei orthodoxae fulciamen­tum, Regumque ac principum pacificationem, or any other particular cause which occasionally might be inserted. So long then as Kings had their votes in the general Councils, they were engaged in the maintenance of their decrees; and by this means entred the Canon-law into Kingdoms. Nor was the vote of Kings difficult to be obtained, especially in matters that trenched not upon the Crown; for the Pope (knowing well that Kings were too wise to adventure their own persons into foraign parts where the general Councils were holden, and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse) allowed Bishops and Clergy-men to be Proctors for their Princes, that in the Negative they might be pii inimici, and less active; but in the Affirmative zealous; and so make the way wider, by the Temporal and Spi­ritual vote joyned in one. Neither did Kings onely save their purse, but they also made their own further advantage hereby; for by the engage­ment and respect which these their Proctors had in Councils, they (being for the most part such as were had in best esteem) obtained better re­spect to the cause that they handled, and speedier dispatch.

Nevertheless the case sometimes was such, as could not expect favour; and then as the King's temper was, they would sometimes ride it out with full sail, and to that end would either joyn with their Ecclesiastcal Pro­ctors some of the Barons and great men of their Realm, to add to the cry, and make their affairs ring louder in the ears of fame (although the Pope had the greater vote) or otherwise would send an inhibition un­to their Proctors and their assistants; or an injunction to look to the rights of the Crown, Fox Mart. P. 2. 263. as Henry the Third did at the Council at Lyons; and this sounded in nature of a Protest, and (within the Realm of England) had the force of a Proviso, or Saving. But if the worst of all come to pass, viz. that the Council passed the cause against Kings without any Inhibition or Injunction, yet could it not bind the Law of the Land, or Kings just Preroga­tives, no not in these times of Rome's hour, and of the power of darkness. For at a Synod holden by Arch-bishop Peckham, An. 1280. the Acts of the Coun­cil of Lyons were ratified, and amongst others, a Canon against non-resi­dency and pluralities; and yet neither Council nor Synod could prevail; for in Edward the Second's time an Abbot presenting to a Church vacant (as was supposed) by the Canon of pluralities, the King whose Chaplain was disturbed, Antiq. Brit. Eccles. fol. 209 enjoyned the Abbot to revoke his presentation upon this ground, Cum igitur, &c. in English thus: Whereas therefore that Decree [Page 156] bindeth not our Clerks in our service, in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative, that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things, or to be personally resident on their Benefices, &c.

And if this present Law be considered whereof we now treat, which took leave to enact a sence upon a former Canon so long since made, and (which is all one) to mak [...] a general Council (will or nill it) to tread in the steps of an English Parliament, or (which is more mean) to speak after the sence of an English Declaration, that had not yet attained the full growth of a Statute, 30 ass. pl. 5. as was then conceived; it will evidently appear, that the power of a council made up of a mixture of a few votes out of several Nations, or the major part of them, being unacquainted with the Laws and Customs of Nations, (other than their own) was too mean to set a Law upon any particu­ler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few, so neither were the Proctors; as may appear from this, that Pope Inno­cent, out of his moderation, if we may believe it, and to avoid much expence, as he saith, did order that the number of Proctors in such cases should be few. But in truth, the times then were no times for moderation amongst Popes and their Officers, and therefore it was another thing that pinched; for multitude of Proctors, if their num­ber had not been moderated, might perhaps, if not prevail, yet so blemish the contrary party, that what the Pope should get, must cost him loss of spirits, if not bloud. And although the Bishops being fast Friends to the Pope, by vertue of their Oath, did prevail in pow­er, and the Pope had the controul of the Council: yet the exceeding number of the Proctors, on the contrary, might render their conclusions somewhat questionable in point of honesty, as being made against the mindes of the greater number of persons present, though their votes were fewer. To avoid this difficulty therefore, for more surety-sake, the Popes enlarged the number of Voters; for whereas it seemeth to be an ancient rule, that onely four Bishops should go out of England to the general Council, Hoveden. An. 1179. in after-ages not one Bishop could be spared, un­less in cases of great and emergent consequence (as may appear by the Pope's Letter to Henry Third) and the case required it: for the oppres­sions of the Pope began to ring so loud, M. Paris. An. 1245. as the holy Chair began to shake. Neither did Kings confine themselves to any certain number of Proctors, notwithstanding the Pope's moderation; but as the case required, sent more or less: as unto the Council at Pisa, for the composing and qui­eting that great Schism in the Popedom, Henry the Fourth sent solemn Embassadors, and with them nigh eighty in all. But unto the Coun­cil at Basil, Henry the Sixth sent not above twelve or thirteen, as Mr. Sel­den more particularly relateth. Spicil. 215. And unto the Council at Lyons, for­merly mentioned, the Parliament sent but six or seven, to remonstrate their complaints of the extortions of the Court at Rome, their Legates and Emissaries. The sum of all will be, that the Acts of general Coun­cils were but Counsels, which being offered to the sence of the Parliament of England, might grow up to the degree of Laws, if the Parliament liked them.

Nevertheless, National Synods in England undertook the quarrel of general Councils: Synods. for Arch-bishop Peckham, in a Synod, 1280. enjoyned [Page 157] the Constitutions made in the Council at Lyons, to be observed under a curse, without consultation first had with the Parliament, or before he knew whether they would be right or wrong. And before him Boniface made Constitutions in opposition to the customs of the Kingdom; so as the matter was now come to a kind of contest, whether Synods or Parliaments should hold supremacy in doubtful cases concerning the li­mits of the Ecclesiastical and Temporal power. For henceforth Kings must bid adieu to the Synods, and sit no more amongst them; and Synods now think themselves free to consult and determine what they please, without speaking under correction; nor was there other remedy left to Kings but threats, Rot. Pariiam. 18 H. 3. num, 17. by Writs directed to the Bishops, firmi­ter inhibendo quod, sicut Baronias quas de Rege tenent diligunt, nullo modo praesumant concilium tenere de aliquibus quae ad coronam Regis attinent, vel quae ad personam Regis, vel statum suum, vel statum concilii sui contingunt, quod si fecerint, Rex inde se capiat ad Baronias suas.

And this prevailed so effectually, that the Bishops durst not adven­ture too far, lest they should go beyond their guard; and therefore they come and ask leave of the Parliament in cases that trenched upon the Law of the Kingdom; Stat. Merton cap. 9. as they did in the case of Bastardy, where­in they would have had their consent, That Children born before Mar­riage might be made legitimate by the Marriage subsequent. And yet they could not prevail; for they were answered, Nolumus leges Angliae muta­ri, notwithstanding that the Canon-law and the Laws of the Nor­mans sided with them. And so they obtained not their desire, al­though they still retained the Tryal of general Bastardy unto them­selves.

Nevertheless the times were such, as Kings being too weakly assi­sted by the people, and the Clergie strongly seconded by the Pope, they took advantage of those times of distraction, so as to hold them­selves no farther obliged to the King, than the Pope and their own covetousness would allow them: and to make all sure, they had set­led it so far as they were able, by a Constitution that the Clergie were not bound to aid the King Papa inconsulto: A [...]tiq. Brit. and they put it in pra­ctice in a Synod under Arch-bishop Winchelsie, Anno 1295. in the time of Edward the First; and although the King prevailed in the conclusion at that time, yet from the times of Henry the Third, the Clergie for fu­ture times granted their aids to the King by themselves, and apart from the rest of the body of the Kingdom, and held themselves not bound by any aid granted by the Parliament; albeit that their own aids gran­ted in their Synods were not obligatory unto the body of the Clergie in this Kingdom, unless first allowed and confirmed by the Parliament. And thus is England become like a two-bodied monster supported with one pair of Legs.

CHAP. LXVII. Mag. Charta. Of the condition of the Free-men of England, of the Grand Charter, and other Statutes, during the Reigns of these Kings.

SHattered asunder by broyls of Civil Wars, the Freemen having laid a­side that regard of the ancient mutual covenant, and bond of De­cenners, are now become weak, and almost enthralled to the lust of Kings, Lords, Pope, and English Clergie: and therefore it is no wonder if Taxes and Tributes were many and new, although most of them deserved not to march under any banner but the colours of oppression; nor did any thing save them from the worst Tenure of all, but the several interests of those superiour powers which oftentimes did justle with one another, and thereby gave the Commons liberty to take breath; so as though for the present they lost ground, and hunted upon a cool scent, yet they still retained the prey within their view. Sometimes they were cast far be­hind, other times they recovered themselves: a Truce is cried, and Laws are made to moderate all, and determine the bounds of every one; and thus comes the Grand Charter upon the publick Theatre. The Hi­storian saith, it was the same with that of King John's framing; and yet by comparing them together, we find them disagreeing both in words and sence; and therefore shall sum the same up as shortly as I can, ob­serving the difference of the two Charters as I pass along. The First Chapter concerned the Church, of which sufficient hath been spo­ken.

The Freemen shall enjoy these Liberties to them and their Heirs for ever. cap. 2.

The Heir in Knight-service shall pay the ancient relief. cap. [...].

That Reliefs were setled by the Saxons, hath been already shewed, and also that they were continued and confirmed by Henry the First: onely in those times they were paid in Horses, Arms, &c. But in after-times all was turned into money, which was more beneficial for all.

Lords shall have their Wards bodies and Lands after homage received until the full age, though the Ward be formerly Knigh­ted. cap. 4. Vide Stat. de Wardis, 28 E. 1.

The Law of Wardship may seem more anciently seated in this King­dom than the Normans times; Glanv. lib. 6. c. 1, & 4. for if the Statutes of Scotland bear any cre­dit, that Law was in Scotland before those times. The Lords were not to have the Wardship before they were possessed of the Tenure, because it was theirs as a fruit of the Tenure, according to the Saxon Law concer­ning distress, that it could not be in the power of the Lord to distrain till he was possessed of the service. Stat. Marlb. c. 6, & 7. And if by fraudulent conveyance the Heir did hold the Lord out of possession, a Writ of Ward did lie against him; and if he did not appear, the Lord might seize the Lands, unless in case of Wardship, per cause de guard.

[Page 159] And in case the Lord would hold the Wardship longer than the full age of the Heir, Stat. Marlb. cap. 16. and Prerog. Reg. c. 3. an Assize did lie against the Lord; for the Heir could not enter without Livery. But if the Heir were of full age at the time of the Ancestor's death, the Lord could not enter the Lands; and yet he should have a Relief, and the primer seisin.

And if the Heir entred the Lands before Homage done, he gained no Free hold, though he were Knighted before, as this Law provideth. For it may seem that these times of Civil War, Prerog. Reg. c. 13. brought forth a trick of Knigh­ting betimes, as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of War was good or evil. And yet reason might induce a con­ceit, that he that was thought meet to do Knight-service in his own per­son, might expect the maintenance fit for the ability of the person, and ho­nour of the service.

Grantees or their Assigns, or Committees of Wardships, Mag. Charta. shall preserve the Land, &c. from Waste, and the Tenants from ex­tortion.

They shall yield up the same stocked, cap. 6. if they receive them stocked.

The first of these is the Law of common reason; for it is contrary to Guardianship, to destroy that which by their office they ought to pre­serve. As touching the words of the Law, the Grantees are omitted in the Charter of King John; and also their Assignees, albeit that doubtless they were within the intent and meaning of the Law. The matter de­clares plainly not onely the oppression of Lords upon their Wards, but al­so the corruption even of the Law itself, that at the first aimed at the good of the Publick, and honour of Knight-service, but now was degenerated in­to the base desire of profit, by making market of the Wards Estates and Marriages, that brought in strip and waste of Estates, and niggardly neg­lect of the education and training up of the persons of the Wards, and an imbasing of the generation of mankind, and spoil of times. Nor did these times ever espy, or provide against the worst of these, but onely endea­voured to save the estate by punishing the wasters in damages by this Law, Stat. Gloc. c. 5. and by forfeiture of the Wardship by a Law made in the time of Edward the First; and this as well for Waste done during the time of the custody, as in the life-time of his Ancestors, by another Law in Edward the First's time. Stat. de vasto. 20 E. 1. And because the Escheators and their under-Officers used to serve themselves out of the Estates of Minors, before they certi­fied to the King his right; and those were not within the Law of Magna Charta, Artic. sup. cart. c. 18. or at least not so reputed: It was therefore afterwards provided; that these also should render damages in a Writ of Waste to be brought a­gainst them.

The marriage of Wards shall be without disparagement. cap. 7.

It was an ancient Law among the Germans, Tacitus mor. Germ. and the Saxons brought it hither, and as a Law setled it, that Marriage must be amongst equals; Mag. Charta. but this the Danes and Normans slighted, and yet it continued, and was revi­ved. Now as the Lord had the tuition of the Ward instead of the Ance­stor, so had he the care of the marriage in such manner as the Ancestor [Page 160] might have had if he had lived. For in case the Ward were stoln and mar­ried, the Delinquent suffered fine and imprisonment. Or if the Ward married without the Lord's consent, he shall have the double value, and hold the Land over till satisfaction. Stat. Merton. cap. 6. But in case the Lord marrieth the Ward within fourteen years of age to its disparagement, he shall lose his Wardship thereby. cap. 7. And if the Ward refuseth to accept of a marriage ten­dred by the Lord before her age of sixteen years, W. 1. c. 22. the Lord shall hold the Lands till he have received the full value; and in case where one Tenant holdeth of divers Lords, the Lords by priority shall have the marriage. These Laws were in use during the Reigns of those Kings, West. 2. c. 16. although it can­not be certainly concluded hereby, that the Wives portion properly be­longed to the Lord, as for his own benefit; partly because the Female-Wards should have no advancement, if it belonged to the Lords; and part­ly because this forfeiture was given to the Lords in nature of a penalty, as appeareth by the frame of the Statute of Merton.

Widows shall have their Dower, cap 8. inheritance, their inheritance which they have joyntly with their Husbands, Vide. Stat. Merton. cap. 1. & 2. their marriage free­ly, and their Quarentine. Prerog. Reg. cap 4.

With due regard of the opinion of others, I shall propound my own. It seemeth to me that the King is within this Law, as well as within the former Laws of the Normans, and those of Henry the Second, that are of this kind; and as he is within the compass of every Law of this Charter; and that it is called the Grand Charter, as most immediately coming from the King to the people, and not from the Lords. Nor is there any ground that the Law should intend to give liberty to Widows of Wards belong­ing to inferiour Lords to marry whom they will, and that onely the Kings Widows shall be bound. Nor did this suit with the contest between the Barons and the King, that their Widows should be bound unto the King, Mag. Charta. and the Widows of their Tenants discharged from their tuition; and therefore I conceive, by the word maritagium is not meant liberty of Marriage, but her Marriage-portion, or rationabilis pars, according to the foregoing Laws of Henry the First, and Henry the Second, and the Saxon Customs. But as touching the liberty of Marriage, it is de­fined and expressed, cap. 9. Glanv. lib. 7. cap. 12. that the Widows shall not be compelled to marry; nevertheless if they shall marry, they must marry with the Lord's liking; otherwise he might have an enemy to be his Tenant, that might instead of homage and service, prove Traitor, and be his ruine. Lastly, touching the Widows dwelling, the Law thought it unreasonable that she should immediately after the death of her Husband be exposed to be harbour­less, and therefore ordained that she might continue in her Husband's house Forty days, if it were not a Castle; and then she was to have another dwelling assigned to her, because by common intendment she is not supposed to be a person meet to defend a Castle: and this was called her Quarentine; which I meet not with amongst the Saxon Laws, and therefore suppose it to be of Norman original.

No Man's Land shall be seized for Debt to the King so long as the Personal Estate will satisfie. cap. 10. Nor shall his pledge be trou­bled, so long as the Principal is sufficient; unless he refuse to sa­tisfie, and then the pledge shall recover in value.

[Page 161] The first part hereof, was the issue of the Law concerning elegit, for­merly observed in the Saxon times; for the regard of Law principally ex­tended unto the person, next unto the Free-hold, and lastly unto the goods. The latter part of this Law was the Law of Pledges or Decenners in the same times; unto which the Reader may resort for further light herein.

The City of London, cap. 11. and other Cities, Burroughs, and Towns, and the Cinque-ports, and other Ports, shall enjoy their ancient Liberties.

The whole Kingdom, and the Members thereof herein expressed, had all their Liberties saved from the dint of Conquest by the Law of William the first; Mag. Char. upon which, although some of the succeeding Kings did invade, yet none of them made any absolute disseisin, Seld. Spicil. fol. 192. although disturbance in some particulars. But King John did not only confirm them by his grand Charters, but by particular Charters to each Corporation, with some en­largements; and in his grand Charter inserted one clause which in the grand Charter of Henry the Third appeareth not, which thus ensueth: Et ad habendum commune concilium Regni de auxiliis assidendis, aliter quam in tribus casibus praedictis; which if the barbarism of the Latine mislead me not, is thus in English: And to have right of Common-Council, or to be of the Common-Council of the Kingdom, for the assessing of aids, other than in three cases aforesaid, viz. for redemption of their Captive King, for Knight­ing of the Kings Son, and for his Daughters Marriage: because these three might be due by the Common-Law; the two latter by custom, the for­mer by common right; although mentioned from the late disaster of King Richard, which King John might with shame enough remember, and expect the same measure from the censure of an unquiet conscience. I shall not enter into debate concerning the omission hereof in the later Charters; possibly it might seem a tautology. Nor concerning the re­striction, as if it did imply that the Burgesses had Vote only in cases of ge­neral assesments, but shall leave it to the consideration of the Reader.

No Distress shall be taken for greater service or other matter than is due. cap. 12.

Distresses are in nature, no other than a summons in act, or the bringing of a man to answer by seizure of part of his Goods; and it was used by the Saxons, as hath been shewed: and because the rich men under colour of seeking their right, many times sought for wrong, and though they could not prevail in the issue, yet prevailed so far, that the Defen­dant could not escape without charge and hinderance; therefore the Law provided a Writ of remedy against unjust vexation, Glanvil. lib. 12. cap. 9. which Glanvil remembreth us of: Mag. Char. and yet because that remedy also carried with it matter of charge and disturbance to the Plaintiff, and so the remedy might be worse than the disease; therefore the Law defined distresses by circumstances of person, matter, time, and place, under penalties of fine and amercement, Stat. Marlb. cap. 1. besides the recompence to the party; first, it must not be taken, Glanvil. lib. 9. cap. 1. & 8. but by leave from the Kings Court, unless in case of mat­ters due by common right, and upon complaint made by the Plaintiff. The King sent out a Summons in this manner: Gloss. 215. Henricus Rex Ang. Hominibus Abbatis de Ramsey, salutem. Precipio quod cito & juste reddatis Abbati Do­mino vestro quicquid ei debetis in censu, & firma, & debitis, & placitis; quod [Page 162] si nolueritis, ipse vos inde constringat per pecuniam vestram. And in all cases of matters due by common right, the distress never was done in an ar­bitrary way, Glanvil. lib. 9. cap. 8. Stat. Marlb. cap. 2, 3, 4, 15. but by Judicial Act in the Lord's Court. Secondly, no di­stress for suit shall be made out of the Fee, nor against any person, but such as are of that Fee. Nor shall any distress be made in the King's High­way or open street, but by the King's Officer, and special Writ; because distress is incident to service, and that is due as from the Fee: and there­fore by common right the same must be recovered from the Fee, and such as owe service in the same; but the High-way or open street are more pro­perly a Franchise belonging to the King, although the Soil haply may be the Lords. And therefore it was an old Law, that they should be under the King's safeguard, Ll. Inae. Sit pax publica per communes vias; and no violence must be there tolerated but by the King's special Writ, which presupposeth the especial notice taken by the King of the nature of the occasion. A moderation also must be observed in the taking of the distress, for it must not be excessive; and also in keeping thereof: for if the owner will, he may replevy the same, Marlb. c. 21. Glanvil. lib. 12. cap. 12. according to the ancient course; and the Sheriff must grant replevy if it be demanded, although formerly no replevy was without special Writ; and yet that also not always readily obeyed: for the times were such, as the Lords were bold with the King's Courts and Ministers, and refused the order of the Law. Now in such cases wherein the matter concerned contempt of the King's Authority, Mag. Chart. a Fine was set upon the Offender; but in case it concerned onely a Tort done to the par­ty, he was amerced: The one is called Redemption, because the penalty o­therwise must lie upon the person, if it be not redeemed by pecuniary Fine; the other is called Amercement, Mircr. cap. 5. Sect. 3. which is originally a satisfaction unto the party wronged, by recompence out of the personal Estate of the Delin­quent. Thirdly, as touching the matter of the distress, it must not be of Plough beasts or Sheep, Distric. Scac. Artic. Mag. Cart. cap. 12. unless in case of damage fesant, if other distress may be had; for the Law had a care of such Cattel as were most of publick concernment, and which was the main stock of subsistence, so far as Ju­stice would allow. And therefore the unjust taking of any man's Cattel by any person whatsoever, is liable to the same penalties that unjust di­stresses are. West. 1. c. 16. Fourthly, concerning the using of the distress, it must not be sold, no not in the King's case, till fifteen days be past, after it is taken; nor must it be carried out of the County, Marlb. cap. 4. Distric. Scac. but it must be so impounded as the owner may come to feed it; and it must be discharged if the owner give security of satisfaction before the return of the Writ. Artic. sup. Cart. cap. 12. Fifthly, the intent of the distresses must be that which is just, and therefore not for o­ther suit than by the Feoffment is due, or else by Prescription; and in case many are joyntly seized, Marlb. cap. 9. the suit shall be by one, and the rest shall contri­bute. Nor must any man be compelled to shew his Title to his Land by distress. cap. 22.

The Common-pleas shall be holden in one certain place. cap. 13.

The Office of Judge of the Common-pleas, was, in my opinion, distinct and several from that of the Crown-pleas; nor though one and the same man might execute both Authorities, doth it therefore follow that it was by one and the same power; as if being Judge, he had thereby pow­er in all matters of the Common-pleas, and also of the Crown. For though it be true that Bracton saith, Capitales Just. nostri. The King hath one proper Court wherein are the Chief Judges, which both by his own Testimony, and Briton's also, [Page 163] did hear and determine Causes of all sorts; yet is it true also, that it was by Appeal, or Writ of Errour, as in case of false Judgment; and that the King had plures curias, Marlb. cap. 20. which doubtless had their proper work. And in the time of Henry the second, it is clear that six were especially assigned for the Common-pleas throughout the whole Realm; and yet by another espe­cial Commission, or Letters-Patents, the same men might also have pow­er to determine matters of the Crown, as at this day, in their several Cir­cuits. This Law therefore doth not, as I conceive, work any alteration, but onely in this, that whereas formerly the Judges of Common-pleas at­tended on the King's Court continually, as all other Judges did; and whi­ther the King removed, they did the like, which was a great uncertainty and grievance unto the Commons; henceforth they are fixed to a certain place.

Assize of Novel Disseisin and Mortdancester shall be deter­mined in the proper County onely, cap. 14. and by the Justices itinerant sent by the King or his Chief Justices.

The Law was so declared in Henry the second's 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: Westm. c. 51. 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, Stat. Gloc. c. 6. if there be divers Heirs of one An­cestor by one Title. And if there be joynt-Tenants, and the Writ be a­gainst but one, Conjunct. feo­fat. An. 34. E. 1. 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. cap. 15.

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, West. 2. c. 30. 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, cap. 16. [Page 164] 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. Marlb. cap. 19. 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, Westm. 1. c. 6. 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, Miror. cap. 5. sect. 4. 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, cap. 17. & 18. 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, Miror. cap. 5. sect. 2. 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, cap. 19. Constable, Coroner, or other Bayliff, shall hold any Pleas of the Crown.

[Page 165] 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, Ll. Hen. 1. c. 8. Glanvil. lib. 1. cap. 2. 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, cap. 20. 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, Glanvil. lib. 7. cap. 5. 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 the Church, saving to every one their proper debts. And thus since the Conquest, the Church-men encroached by degrees un­to a great power in matters Testamentary; I say by degrees: for as yet by this Law it appeareth, that they were but Overseers or Eye-witnesses; for as yet right of ordering or disposing they had none, as may appear in that case of a Bastard dying without Issue and intestate, Glanvil. lib. 7. cap. 16. the Lord shall have his personal Estate: And in all cases the Executor had then nothing but bare Assets, and the overplus was assigned between the Wife and Children, according to their reasonable part. Or if the party died intestate, the next friends did administer, paying the Debts, and making Dividend of the overplus into the reasonable parts; according to the ancient Saxon cu­stom still continued. Coke Instit. 2. page 33. Nor doth the testimony cited out of Bracton, prove any other than that the Ancestor hath free power to order his Estate as he pleaseth, and that the Children shall have no more than is left unto them by their Ancestor, either in his Will, or in case of dying intestate, by the custom or Law, which is, and ever, was the rationabilis pars.

No purveyance for any Castle out of the same Town where the Castle is, cap. 21. but present satisfaction must be made: and if in the same Town, satisfaction must be made within forty days.

Purveyance was ancient provision for the necessities of the publick, and so far was commendable, seeing it is not the common case of all men to regard the publick above their own private interest; therefore the publick must provide for it self, by their means in whom the publick is most concerned. And this was in those elder times, but in two cases; viz. of Kings and Castles; in the one of which the Government is principally concerned, in the other the publick defence. For it may [Page 166] be well conjectured, that Castles were either first made in places commo­dious for habitation, and great Towns gathered to them for their better safety; or that the Towns were first gathered in places of commodious habitation, and then Castles were made for their better defence. Or if they were imposed upon them by the Victor to keep them in awe, they were nevertheless by continuance together become tractable, and conspi­red for the mutual defence of each other. But as touching such Citta­dels or Castles that were set in solitary places, they may seem rather first intended for the particular defence of some particular Man and his Fa­mily, and neighbouring Tenants; and therefore in the purveyance for Castles, it seems the proper Town wherein it is, principally liable to that duty, because their safety is more principally interested: and therefore Prizes there taken, may be paid at a day to come; but in all other places immediately. Nevertheless this lasted not long; for the Souldiers found out a trick of favouring their own Quarters, and preserving them in heart against a back Winter, knowing that at such times it is better to seek for provision nigh, than to be compelled to seek far off. But this Stratagem was cut off by the next King, who inhibited all manner of purveyance in any o­ther Town, West. 1. c. 7. than in the same Town wherein the Castle is seated. This was a charge that was but Temporary and occasional: That which was more lasting and burthensome upon the Subjects, was purveyance for the King; which nevertheless cannot be avoided, by reason of the greatness of his Retinue, especially in those days; and if they should have their resort to the Market, the same could not be free to the people, for that the first ser­vice must be for the Kings Houshold, and so what scraps will be left for the Commons, Artic. super cart. cap. 2. no man can tell. It was therefore necessary for the Kings Fa­mily, to be maintained by purveyance; and to avoid the many inconve­niencies which might and did arise in those spoiling times, It was ordained, 1. That it should be Felony for any Purveyor to purvey without Warrant. 2. That none but the Kings Purveyor must purvey for the Kings house, and that he must purvey onely for the Kings house; and to purvey no more than is necessary; and to pay for the things they take. And because Kings were oftentimes necessitated for removal from place to place, purveyance of car­riage was also allowed: West. 1. c. 32. And in case the Subjects were grieved, either by more purveyance than was necessary, or by non-payment for the Commo­dities so taken, or with composition for the Kings debts; for such purvey­ance the Offenders were liable to fine and imprisonment. Artic. super cart. cap. 2. Or if they were grieved by Purveyors without Warrant, the Offender was to be proceeded against as in case of Felony.

He that serveth in Castle-guard, cap. 22. is not liable to payment of Rent for that service; nor is be compellable to either, so long as be is in the service in the Army.

By the ancient custom none but a Knight might be charged with the guard of a Castle belonging to the King, for the letter of this Law mentio­neth onely such; and therefore to hold by Castle-guard, is a Tenure in Knight-service. And it seemeth that Rent for Castle-guard originally was consistent with Knight-service, and that it was not annual, but promiscu­ously Knights might either perform the service, or pay Rent in lieu there­of; and upon occasion did neither, if the King sent them into the field. And lastly, that a Knight might either do the service in his own person, or by his Esquire, or another appointed by him thereto.

[Page 167] No Knights, nor Lords, nor Church-mens Carriages, nor no mans Wood shall be taken against the Owners consent; nor shall any mans Carriages be taken, cap. 23. if he will pay the Hire limited by the Law.

Church-men were exempted from charge to the Kings Carriages, meerly in favour to the Canon, which exempted the Goods of the Clergy from such Lay-service; nevertheless the complaints of the Clergie formerly mentioned, shew that this was not duly observed. Knights and Lords were discharged not onely for the maintenance of their Port, but more princi­pally because they were publick servants for the defence of the Kingdom in time of War: and the Kingdom was then equally served by themselves and their equipage, and their carriages, as a necessary assistant thereunto.

The King shall have no more profit of Felons Lands than the year and a day, cap. 24. and the Lord is to have the remainder.

Anciently the Lords had all the Estate of Felons, being their Tenants, and the King had onely a Prerogative to waste them, Instit. 2. as a penalty, or part thereof; but afterwards the Lords by agreement yielded unto the King the year and a days profit, to save the Lands from spoil: and in continu­ance of time the King had both the year and day, and waste. Bract. lib. 3. fol. 137. Fugitives also were in the same case, viz. Prerog. Reg. cap. 16. such as deserted their Country either in time of need, or such as fled from the Tryal of Law in criminal cases: for in both cases the Saxons accounted them as common Felons. Nevertheless the two customs of Gloucester 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, Prerog. Reg. cap. 14. Fits. 2. E. [...]. Tit. Eschea. 11. 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, cap. 25. 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, cap. 26. whereby a man may be in danger of losing his Court thereby.

[Page 168] 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, cap. 27. and one breadth of Cloaths, throughout the Realm of England.

This Law of Weights and Measures was anciently established amongst the Saxons, Ll. Edgar. c. 8. 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. cap. 28.

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; West. 1. c. 11. 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. Glocest. cap. 9. 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; West. 2. c. 29. for though the King be a brave Souldier, and prosperous, yet the people overcome him, and recover their Writs de odio & atia a­gain.

[Page 169] Lords shall have the Wardships of their Tenants Heirs, Mag. Charta. cap. 29. 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, Glanv. lib. 7. cap. 9. 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, cap 30. 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; Bracton f. 106. for Glanvil saith, Ob infamiam non solet juxta legem terrae aliquis per 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, Seld. super Hengham. 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, cap. 31. 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.

[Page 170] 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, cap. 32. 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 [Page 171] that I met with, Mag. Char. Concil. Brit. 299. 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; Ibid. 623. Glanvil. lib. 7. cap. 16. 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, M. Paris. An. 1229. Merton cap. 5. 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, Stat. de Judais. An. 18. E. 1. 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, cap. 33. holden of Lands escheated to the King, shall hold by the same services as formerly.

In all alienations of Lands, cap. 34. sufficient shall be left for the Lords distress.

Submitting to the judgement of the learned, Perog. Reg. cap. 7. 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, 20 ass. pl. 17. 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, 18 Edw. 1. West. 3. c. 1. 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 Clergy. cap. 35.

No man shall be appealed by a Woman for the death of any but her own Husband. cap. 36.

The right of Appeal is grounded upon the greatest interest. Now be­cause the Wives interest seemeth wholly to be swallowed up in her Hus­band, therefore she shall have an Appeal of the death of him onely; and such also was the Law in Glanvil's time. How far this point of interest shall extend to the degrees of Consanguinity, the Norman Law formerly [Page 172] hath shewn. And against whom Appeals did lie, Mag. Chart. West. 1. c. 14. the Statute at West­minister tells us, viz. not onely against the principal, but also against accesso­ries; yet not against them till the principal be attainted. And because it was ordinary for men of nought to appeal others in a malicious way, it was by another Law established, West. 2. c. 13. that if the party appealed was acquit­ted, the appealor should not onely render damages, but be imprisoned for a year.

The County-Court shall be holden at the wonted time. cap. 36.

The Torn shall be holden at the accustomed place twice in the year, viz. after Easter and Michaelmas.

The view of Frank-pledges shall be holden at Michaelmas.

The Sheriff shall not extort.

The Sheriff's Courts had now lost somewhat of their Jurisdiction, though for time and place they are confirmed statu quo, to the end that through uncertainty thereof the suiter might not make defaults, and be amerced. Yet they lost much of their respect within the compass of these few years by two Laws; Merton. c. 10. the one of which, made at Merton, allowed all suiters to the rural Courts to appear by Proxie or Atturney, which it seemeth had power to vote for the Masters, in all cases publick and pri­vate; and did not onely themselves grow into parties and maintenance of Quarrels, and so spoiled these Courts of their common Justice, but rendred the Freemen ignorant and careless of the common good of the Country, and given over to their own private interest. And though the corruption of Justice was soon felt, and against it a Law was provided, viz. That the Sheriff should not allow of such corrupt Attorneys; West. 1. c. 33. yet this was no cure to the Freemen, who were still suffered to wax wanton at home, albeit that they were discharged from doing their suit in all other Hundreds but that wherein they dwell. Marlb. c. 10. The second Law that took away much honour from these Courts, Ibid. was that Law at Marlbridge, that discharged the Baro­nage of England and the Clergie from their attendance at such service; and this also opened the door wider to oppression. For where greatness is, it carrieth therewith honour from the meaner sort, and a kind of awe and stop unto the minds of such men that otherwise would riot without re­straint: and though it might also be said, that the pretence of great men in such Courts would oversway the meaner, and make strong par­ties; yet it must also be acknowledged, that these parties being greater are the fewer, and do not so generally corrupt all sorts, as the corruption of the meaner sort do. It is said by the wise man, Where the poor oppress the poor, it is like a raging rain that leaves no food. The last branch in this Law is an inhibition to the Sheriff from extortion; and surely there was great need, and much more need than ever, now that the Lords and Clergy are absent. It was thought that the great occasion of the Sheriff's oppression was from above; I mean from the King, that raised the values of the Farm of Counties granted to the Sheriffs; Artic. sup. cart. cap. 13, 14 Stat. de vice­com. An. 9. E. 2. for in those days Sheriffs gave no accounts, as of later times they have done; and therefore the Charter of King John, between the 17th and 18th Chap. inserteth this Clause, Omnes Comitat. & Hundred. Wapentag. & Trethingi sint ad antiquas firmas, absque ullo incremento, exceptis Dominicis Maneriis no­stris. But this did not work the work, although it took away occasion; for the humour was fed from within, and turned to a sore upon that place [Page 173] that could never be cured to this day. Mag. Chart. Nor could the wisdom of times find other help to keep the same from growing mortal, but by scanting the dyet, and taking away that power and jurisdiction which formerly it enjoyed.

The 37th Chapter hath been already noted in the Chapter of the Cler­gie cap. 37. next foregoing.

Escuage shall be taxed as was wont in the time of Henry the second. cap. 38.

The Charter of King John hath superadded hereunto this ensuing pro­vision: There shall be no Escuage set in the Kingdom, except for the redeem­ing of the King's person, making of his eldest Son a Knight, and on marriage of his eldest Daughter; and for this there shall be onely reasonable aid. And in like manner shall the aids of the City of London be set. And for the assessing of Escuage, we will summon the Archbishops, Bishops, Abbots, Earls, and greater Barons of the Kingdom, specially by our several Writs; and will cause to be summoned in general by our Sheriffs and Bailiffs all other our Tenants in capite, to be at a certain day after Forty days at the least, and at a cer­tain place; and we will set down the cause in all our Writs. And the mat­ter at the day appointed shall proceed according to the counsel of those that shall be present, although all that were summoned do not come. And we will not allow any man to take aid of his Freemen, unless for redemption of his body, and making his eldest Son a Knight, and on marriage for his eldest Daughter; and this shall be a reasonable aid onely.

Thus far the Charter of King John concerning this point of Tax or Assessment; M. Paris. and if the History saith true, the Charter of Henry the Third was one and the same with that of King John, then either this was not lest out in Henry the Third's Charter, in that Historians time; or if it was omitted in the original, it was supposed to be included in the gene­ral words of the Law, as being accustomed in times past. And then these particulars will be emergent: First, that the Aids and Escuage in Henry the First's time, were assessed by the same way with that in this Charter of King John; M. Paris. An. 1214, 1215. for that all the quarrel between the Lords and King John, was concerning the Charter of Henry the first, which the Lords sware to maintain. Secondly, 25 Edw. 1. c. 6. that neither Aids nor Escuage were granted, or le­gally taken, 34 Edw. 1. c. 1. but by Act of Parliament, West. 1. c. 36. although the rate of them was setled by common custom, according to the quantity of their Fee. Third­ly, that some Parliaments in those times, as concerning such matters, con­sisted onely of such men as were concerned by way of such charge, by reason of their Tenancy: for Escuage onely concerned the Tenants by Knight-service, and therefore those onely were summoned unto such Parlia­ments as onely concerned Escuage. Nor had the City of London nor the Bur­gesses right to vote in such cases, it is said p. 258. And thus the Forest-Laws that were made in the time of Richard the First, were made by the consent of Archbishops, Hoveden. 44. [...]. 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 [Page 174] Henry the Third about the latter part of his Reign, Mag. Charta. when his Government grew towards the dregs, he having in the Kingdom Two hundred and fifty Baronies, Gloss. tit. Baron. 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. Walsing. An. 1297. 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, [Page 175] that in lieu of the King's confirmation of the Charter of Liberties aforesaid, Mag. Chart. 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; M. Paris. An. 1227. 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, Marlb. c. 5. 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, Prerog. Reg. cap. 9. and shall render the same to their Heirs.

And concerning Mad-men and Lunaticks, cap. 10. 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 are to be ordered by Tutors, than Children; and therefore this may be annexed to the rest of the Liberties, as well as the other. Neverthe­less, it seemeth that the Laws took them into their regard, in respect of their Estates, which might be abused to the prejudice of the Publick, ra­ther than out of any respect had to their persons. Now because there is a difference between the disability of these persons, the one being perpe­tual, the other temporary; therefore is there also by these Laws a diffe­rence in the disposal of their Estates: for the Tutor had a right in the disposing of the one, and but a bare authority or power in providing for the other. Secondly, the person of the Tutor is to be considered: Anciently it was the next kindred, grounded, as I conceive, upon the natural affe­ction [Page 176] going along with the blood; and this so continued in custom until these times: for though the Mirrour of Justice saith, that Henry the First brought in that course of giving the custody of these disabled persons to the King, as hath been formerly observed; yet Bracton, that wrote long after the time of Henry the First, Bract. lib. 5. cap. 20. speaking of these kind of persons, saith, Talibus de necessitate dandus est tutor vel curator; not so much as mentio­ning the King in the case. Lib. 1. c. 10. And in another place, speaking of such as are alieni juris, saith, that some are under the custody of their Lords, and others under their Parents and friends. But let the time of the entrance of this Law be never so uncertain, it is now a declared Law, that the King in such cases is the common Curator or Tutor of all such persons, as he is a Chief Justice, rendring to every one his right.

The King shall have the Wrecks of the Sea. Prerog. Reg. cap. 11.

What shall be called a Wreck, West. 1. c. 4. the Statute at West. 1. declareth, viz. Where the Ship so perisheth, that nothing therein escapeth alive; and these are rather in their original committed to the King as a Curator, than gi­ven him as a Proprietor; although that Custom hath since setled a kind of right, which may perhaps be accounted rather a Title by Estoppel. For the fundamental ground is, that the right owner cannot be manifested, and therefore the King shall hold it; and if the right owner can be mani­fested, the King shall hold it till the owner doth appear.

The Heir in Socage-tenure shall have an Action of Waste, Marlb. c. 17. and an account against his Guardian for the profits of the Lands and Marriage.

The Heir in Socage being under age, Bracton, lib. 2. cap. 3 [...]. shall also be under custody of such Guardian of the next kinred, who cannot challenge right of Inheritance in such Lands so holden: as if the Lands descended from the Father's side, the Mother, or next of the kinred of the Mothers side shall have the cu­stody; and so if the Lands descend from the Mother, the Father, or next kinred of the Father's side shall have the custody. And this custody brin­geth with it an Authority or Power onely, and no Right, as in case of the Heir in Knight-service; and therefore cannot be granted over as the Wardship in Knight-service might, but the Guardian in Socage remaineth accomptant to the Heir, for all profits both of Land and Marriage. The full age of Tenant in Socage, is such age wherein he is able to do that ser­vice, which is Fourteen years; for at such age he may be able by com­mon repute to aid in Tillage of the ground, which is his proper ser­vice. But the Son of a Burgess hath no set time of full Age, but at such time as he can tell Money, and measure Cloath, and such work as concerns that calling.

Widows deforced of their Dower of Quarentine, Merton. c. 1. shall by A­ction recover damages till they recover their Dower.

They shall also have power to devise their crop arising from her Dower. cap. 2. Bracton, lib. 2. cap. 40.

It was used that the Heir should have the crop with the Land; but this [Page 177] Statute altered that former usage, and yet saved the Lord's liberty to di­strain if any services were due.

Writs de consimili casu granted in cases that fall under the same Law, West. 2. c. 24. and need the same remedy; and such Writs shall be made by agreement of the Clerks in the Chancery, and advice of such as are skilful in the Law.

It was none of the meanest Liberties of the Freemen of England, that no Writs did issue forth against them, but such as were anciently in use, and agreed upon in Parliament. And it was no less a grievance and just cause of complaint, that Kings used to send Writs of new impression to execute the dictates of their own wills, and not of the Laws of the Kingdom; as the complaints of the Clergy in the times of Henry the Third do witness. M. Paris ad­dit. Artic. 44. Nevertheless, because many mens cases befel not directly within the Let­ter of any Law for remedy, and yet were very burthensome; for want of remedy it is provided by this Law, that such emergent cases that do fall within the inconvenience, shall be comprehended within the remedy of that Law.

Aid to make the Son of the Lord a Knight, Westm. c. 36. and to marry his eldest Daughter, shall be assessed after the rate of twenty shillings for a Knights Fee; and twenty shillings for twenty pounds in yearly value of Socage-tenure.

The uncertainties of Aids are by this Law reduced and setled, as touch­ing the sum; and thereby delivered the people from much oppression which they suffered formerly. Nor was onely the particular sum here­by, but also the age of the Son when he was to be made a Knight, viz. at the age of Fifteen years; too soon for him to perform Knight-service, but not too soon for the Lord to get his money. And the Daughter like­wise was allowed to be fit for Marriage at Seven years of age, or at least to give her consent thereto, albeit that in truth she was neither fit for the one or other: and therefore it must be the Lords gain that made the Law; and it was not amiss to have the aid beforehand, though the mar­riage succeeded not for many years after; and if the Lord died in the interim, the Executors having Assets paid it, or otherwise his Heir.