engraved portrait of Nathaniel Bacon dated 1795, after an original self-portrait 
SR. NATHANIEL BACON.  
From an Original at the Lord Viscount, Grimslon's at Gorhambury.  
Pubd. Augt. 10. 1795. by W. Richardson Castle St. Leicester Square.   
AN HISTORICAL DISCOURSE OF THE UNIFORMITY OF THE GOVERNMENT OF ENGLAND. THE FIRST PART. From the first Times till the Reign of Edward the third.  
LONDON, Printed for Matthew Walbancke at Grayes-Inne-Gate. 1647.   

TO THE RIGHT HONOURABLE EDWARD Earl of Manchester, Speaker of the House of Peers: AND THE HONOURABLE WILLIAM LENTHALL, Esqu. Speaker of the House of Commons In PARLIAMENT.  
MAy it please You to accept of this Sacrifice which I offer before Your Supreme Judicatory to the service of the times. The fire is that of loyalty, neither wild nor common; nor is the thing altogether forbidden and unclean. I confess its maimed and unworthy, yet it's the best that I have; and in that regard whiles I now stand at Your Bar, if You shall please to dismiss me without kneeling, I shall in that posture do the Houses the best service that I can elsewhere.  
NATH. BACON.   

To Consideration.  
A Private debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conqueror, (so called) first occasioned this Discourse. Herein I have necessarily fallen upon the Antiquity and Uniformity of the Government of this Nation: It being cleared may also serve as an Idea for them to consider, who do mind the restitution of this shattered frame of policy. For as in all orher cures, so in that of a distempered government the original constitution of the body is not lightly to be regarded; and the contemplation of the proportion of the Manner of the Nation in a small model brings no less furtherance to the right apprehension of the true nature thereof (besides the delight) than the perusing of a Map doth to the traveller after a long and tedious travail.  
I propound not this Discourse as a pattern drawn up to the life of the thing, nor the thing itself as a Masterpiece for future ages; for well I do know, that Commonweals in their minority do want not only perfection of strength and beauty, but also of parts and proportion; especially seeing that their full age attaineth no further growth then to a mixture of divers forms in one. Ambition hath done much by discourse and action to bring forth Monarchy out of the womb of notion, but yet like that of the Philosopher's stone the issue is but wind, and the end misery to the undertakers: and therefore more than probable it is, that the utmost perfection of this nether world's best government consists in the upholding of a due proportion of several interests compounded into one temperature.  
He that knoweth the secrets of all men's hearts, doth know that my aim in this Discourse is neither at Sceptre or Crosier, nor after popular dotage, but that Justice and Truth may moderate in all. This is a Vessel I confess ill and weakly built, yet doth it adventure into the vast Ocean of your censures, Gentlemen, who are Antiquaries, Lawyers, and Historians, any one of whom might have steered in this course much better than myself. Had my own credit been the fraite, I must have expected nothing less than wrack and loss of all; but the main propose of this voyage being for discovery of the true nature of this government to common view; I shall ever account your just censures, and contradictions (especially published with their grounds) to be my most happy return, and as a Crown to this work. And that my labour hath its full reward, if others taking advantage by mine imperfections shall beautify England with a more perfect and lively character.   

The Contents.  

CHap. 1. Of the Britons, and their government p. 1  
Chap. 2 Concerning the conversion of the Britons unto the faith p. 3  
Chap. 3. Of the entry of the Romans into Britain, and the state thereof during their continuance p. 5  
Chap. 4. Of the entry of the Saxons, and their manner of government p. 12  
Chap. 5. Of Augustine's coming to the Saxons in England, his entertainment and work p. 17  
Chap. 6. Of the imbodying of Prelacy into the government of this Kingdom p. 21  
Chap. 7. Of Metropolitans in the Saxons time p. 23  
Chap. 8. Of the Saxon Bishops p. 25  
Chap. 9 Of the Saxon Presbyters p. 27  
Chap. 10. Of inferior Church-officers amongst the Saxons p. 28  
Chap. 11. Of Church-mens maintenance amongst the Saxons p 29  
Chap. 12. Of the several precincts or jurisdictions of Church-governors' amongst the Saxons p. 35  
Chap. 13. Of the manner of the Prelate's government of the Saxon Church p. 36  
Chap. 14. Of causes Ecclesiastical p. 39  
Cham 15. A brief censure of the Saxon Prelatical Church government p. 43  
Chap. 16. Of the Saxons Commonweal, and the government thereof, and first of the King p. 46  
Chap. 17. Of the Saxon Nobility p. 53  
Chap. 18. Of the Freemen amongst the Saxons p. 55  
Chap. 19 Of the villains amongst the Saxons p. 56  
Chap. 20. Of the grand Council amongst the Saxons called the Micklemote p. 57  
Chap. 21. Of the Council of Lords p. 62  
Chap. 22. Of the manner of the Saxon government in the time of war p. 63  
Chap. 23. Of the government of the Saxon Kingdom in the times of peace, and first of the division of the Kingdom into shires, and their officers p. 65  
Chap. 24. Of the County court, and Sheriffs Torn p. 66  
Chap. 25. Of the division of the County into Hundreds, and the Officers and Court thereto belonging p. 68  
Chap. 26. Of the division of the Hundreds into Decennaries p. 70  
Chap. 27. Of Franchises, and first of the Church Franchise p. 71  
Chap. 28. Of the second franchise called the Marches p. 72  
Chap. 29. Of County Palatines p. 73  
Chap. 30. Of Franchises of the person ibid.  
Chap. 31. Of Manors p. 75  
Ch. 32. Of Courts incident & united unto Manors p. 77  
Chap. 33. Of Townships, and their Markets p. 79  
Chap. 34. Of the Forests p. 82  
Chap. 35. Concerning judges in Courts of justice p. 84  
Chap. 36. Of the proceed in judicature by Indictment, Appeal, Presentment, and Action p. 85  
Chap. 37. Of the several manners of extraordinary trial by Torture, Ordeale, Compurgators, and Battle p. 88  
Chap. 38. Of the ordinary manner of trial amongst the Saxons by Inquest p. 91  
Chap. 39 Of passing judgement and execution p. 94  
Chap. 40. Of the penal Laws amongst the Saxons p. 96  
Chap. 41. Of the Laws of property of Lands and Goods, and the manner of their conveyance p. 102  
Chap. 42. Of the times of Law and vacancy p. 110  
Chap. 43. An Epilogue to the Saxon government p. 111  
CHap. 44. Of the Norman entrance p. 113  
Chap. 45. Of the title of the Norman Kings to the English crown; that it was by election p. 115  
Chap. 46. That the government of the Normans proceeded upon the Saxon principles, And first of Parliaments p. 120  
Chap. 47. Of the Franchise of the Church in the Norman times p. 123  
Chap. 48. Of the several subservient jurisdictions, by Marches, Counties, Hundreds, Burroughs, Lordships, and Decennaries p. 131  
Chap. 49. Of the immunities of the Saxon free men under the Norman government p. 135  
Chap. 50. Recollection of certain Norman Laws concerning the Crown, in relation to those of the Saxons formerly mentioned p. 138  
Chap. 51. Of the like Laws that concern common interest of goods p. 142  
Chap. 52. Of Laws that concern common interest of Lands p. 144  
Chap. 53. Of divers Laws made concerning the execution of justice p. 150  
Chap. 54. Of the Militia during the Normans time p. 152  
Chap. 55. That the entry of the Normans into this government could not be by Conquest p. 155  
Chap. 56. A brief survey of the sense of Writers concerning the point of conquest p. 158  
CHap. 57 Of the government during the Reigns of Steven, Henry the second, Richard the first, and John; and first of their titles to the Crown, and disposition in government p. 165  
Chap. 58. Of the state of the Nobility of England from the Conquest, and during the Reign of these several Kings p. 172  
Chap. 59 Of the state of the Clergy, and their power in this Kingdom from the Norman time p. 175  
Chap. 60. Of the English Communally since the Norman time p. 188  
Chap. 61. Of Judicature, the Courts, and their judges p. 189  
Chap. 62. Of certain Laws of judicature in the time of Henry the 2. p. 193  
Chap 63. Of the Militia of this Kingdom during the Reign of these Kings p. 205  
CHap. 64. Of the government of Henry the third, Edward the first, and Edward the second, Kings of England: And first a general view of the disposition of their government p. 207  
Chap. 65. Of the condition of the Nobility of England till the time of Edward the third p. 221  
Chap. 66. Of the state of the English Clergy until the time of Edward the third: and herein concerning the Statutes of Circumspect agatis, Articuli cleri, and of General Counsels, and Nationall Synods p. 225  
Chap. 67. Of the condition of the Free men of England, and the grand Charter, and several Statutes concerning the same, during the Reign of these Kings p. 253  
Chap. 68 Of Courts, and their proceed p. 284  
Chap. 69. Of Coroners, Sheriffs, and Crown pleas p. 286  
Chap. 70. Of the Militia during these Kings reigns p. 294  
Chap. 71. Of the Peace p. 300    

PROLOGUE.  
THe policy of English government, so fare as is praiseworthy, is all one with Divine providence, wrapped up in a veil of Kings and wise men, and thus implicitly hath been delivered to the World by Historians, who for the most part do read men, and wear their Pens in deciphering their persons and conditions: some of whom, having met with ingenuous Writers, survive themselves, possibly more famous after death than before: Others after a miserable life wasted are yet more miserable in being little better than tables to set forth the Painter's workmanship, and to let the World know that their Historians are more witty than themselves of whom they wrote were either wise or good. And thus History that should be a witness of Truth and time, becomes little better than a parable, or rather than a nonsense in a fair Character, whose best commendation is that it's well written.  
Doubtless Histories of persons or lives of men have their excellency in fruit, for imitation and continuance of fame, as a reward of virtue: yet will not the coacervation of these together declare the nature of a Commonweal better, than the beauty of a body dismembered is revived by thrusting together the members, which cannot be without deformity. Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws, (albeit its the proper work of the representative body to form them) yet to no one nor all of them can we attribute the honour of that wisdom and goodness that constituted this blessed frame of government; for seldom is it seen that one Prince buildeth upon the foundation of his predecessor, or pursueth his ends or aims; because as several men they have several judgements and desires, and are subject to a Royal kind of self-love that inciteth them either to exceed former precedents, or at least to differ from them that they may not seem to rule by copy as insufficient of themselves; which is a kind of disparagement to such as are above. Add hereunto that it's not to be conceited that the wisest of our ancestors saw the Idea of this government; nor was it any where in precedent but in him that determined the same from eternity; for as no Nation can show more variety and inconstancy in the government of Princes than this, especially for three hundred years next ensuing the Normans: so reason cannot move imagination that these wheels, by divers, if not contrary motions, could ever conspire into this temperature of policy, were there not some primum mobile that hath ever kept one constant motion in all.  
My aim therefore shall be to lay aside the consideration of man as much as may be, and to extract a summary view of the cardinal passes of the government of this Kingdom, and to glance at various aspects of the ancient upon the modern, that so these divers Princes and wise counsels in their different course may appear to be no other than the instruments of him that is but one, and of one mind, whose go forth have been in a continual course of Wisdom and goodness for ourselves in these latter days: and herein I am encouraged because I am not in danger of temptation to flattery or spleen, nor pinched with penury of grounds of observation; having to do with a Nation, than which a clearer miror of God's gracious government is not to be found amongst all the Nations and peoples under Heaven.   

The Contents of the several Chapters of this Book.  

I. THe sum of the several Reigns of Edward the third, and Richard the second. fol. 3.  
II. The state of the King and Parliament, in relation of him to it, and of it to him. fol. 13.  
III. Of the Privy Council and the condition of the Lords. f. 26.  
iv Of the Chancery. fol. 35.  
V Of the Admiral's Court. fol. 41.  
VI Of the Church-mens Interest. fol. 45.  
VII. Concerning Trade. fol. 64.  
VIII. Of Treason and Legiance, with some considerations concerning calvin's Case. fol. 76.  
IX. Of Courts for causes criminal, with their Laws. fo. 92.  
X. Of the course of Civil Justice during these times. fo. 96.  
XI. Of the Militia in these times. fol. 98.  
XII. Of the Peace. fol. 108.  
XIII. A view of the summary courses of Henry the fourth, Henry the fifth, and Henry the sixth, in their several Reigns. fol. 115.  
XIV. Of the Parliament during the Reigns of these several Kings. fol. 127.  
XV. Of the Custos, or Protector Regni. fol. 134.  
XVI. Concerning the Privy Council. fol. 141.  
XVII. Of the Clergy and Church-government during these times. fol. 146.  
XVIII. Of the Court of Chancery. fol. 162.  
XIX. Of the Courts of Crown Plas and Common Law. fo. 165  
XX. Concerning Sheriffs. fol. 168.  
XXI. Of Justices and Laws concerning the Peace. fol. 170.  
XXII. Of the Militia during these times. fol. 175.  
XXIII. A short survey of the Reigns of Edward the fourth, Edward the fifth, and Richard the third. fol. 181.  
XXIV. Of the Government in relation to the Parliament. fol. 187.  
XXV. Of the condition of the Clergy. fol. 191.  
XXVI. A short sum of the Reigns of Henry the seventh, and Henry the eighth. fol. 194.  
XXVII. Of the condition of the Crown. fol. 202.  
XXVIII. Of the condition of the Parliament in these times. fol. 223.  
XXIX. Of the power of the Clergy in the Convocation. f. 229.  
XXX. Of the power of the Clergy in their ordinary Jurisdiction. fol. 232.  
XXXI. Of Judicature. fol. 241.  
XXXII. Of the Militia. fol. 245.  
XXXIII. Of the Peace. fol. 253.  
XXXIV. Of the general Government of Edward the sixth, Queen Marry, and Queen Elizabeth. fol. 259.  
XXXV. Of the Supreme power during these times. fol. 268.  
XXXVI. Of the power of the Parliament during these times. fol. 277.  
XXXVII. Of the Jurisdiction Ecclesiastical during these last times. fol. 283.  
XXXVIII. Of the Militia in these later times. fol. 290.  
XXXIX. Of the Peace. fol. 297.  
XL. A summary Conclusion upon the whole matter. fol. 300.    

A PREFACE, CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND.  
THE more Words the more Faults, is a divine Maxim, that hath put a stop to the publishing of this second part for some time; but observing the ordinary humour still drawing off, and passing a harsher censure upon my intentions in my first part, than I expected: I do proceed to fulfil my course, that if censure will be, it may be upon better grounds, when the whole matter is before: Herein I shall once more mind, that I meddle not with the Theological right of Kings, or other Powers, but with the Civil right in fact, now in hand. And because some men's Pens of late have ranged into a denial of the Commons ancient right in the Legislative power; and others, even to adnull the right, both of Lords and Commons therein, resolving all such power into that one principle of a King, Quicquid libet, licet; so making the breach much wider then at the beginning; I shall intent my course against both: As touching the Commons right, jointly with the Lords, it will be the main end of the whole; but as touching the Commons right, in competition with the Lords, I will first endeavour to remove out of the way what I find published in a late Tractate concerning that matter, and so proceed upon the whole.  
The subject of that Discourse consisteth of three parts, one to prove that the ancient Parliaments, before the thirteenth Century, consisted only of those whom we now call, the House of Lords; the other, that both the Legislative and Judicial power of the Parliament rested wholly in them: lastly, that Knights, Citizens, and Burgesses of Parliament, or the House of Commons, were not known nor heard of, till punier times than these. This last will be granted, Viz. That these several titles, of Knights, Citizens, and Burgesses, were not known in Parliament till of later times: Nevertheless, it will be insisted upon, that the Commons were then there: The second will be granted, but in part, Viz. That the Lords had much power in Parliament in point of Jurisdiction, but neither the sole, nor the whole.  
The first is absolutely denied, neither is the same proved by any one instance or pregnant ground in all that Book, and therefore not clearly demonstrated by Histories and Records beyond contradiction, as the Title page of that Book doth hold forth to the World. First, because not one instance in all that Book is exclusive to the Commons; and so the whole Argument of the Discourse will conclude, Ab authoritate Negativa, which is no argument in humane testimony at all.  
Secondly, the greatest number of instances in that Book, are by him supposed to concern Parliaments, or general Councils of this Nation, holden by the Representative thereof; whereas indeed they were either but Synodical Conventions for Church matters, whereunto the poor Commons (he well knoweth) might not come, unless in danger of the Canon's dint; or if they did, yet had no other work there, then to hear, learn, and receive Laws, from the ecclesiastics. And the Lords themselves, though present, yet under no other notion were they, then as Council to the King, whom they could not cast out of their Council till after Ages, though they often endeavoured it.  
Thirdly, the Author of that Tractate also well knoweth, that Kings usually made Grants and Infeodations by advice of the Lords, without the aid of the Parliament: And it is no less true, that Kings, with the Lords, did in their several ages exercise ordinarily Jurisdiction, in cases of distributive Justice; especially after the Norman entrance: For the step was easy from being Commanders in War, to be Lords in peace; but hard to lay down that power at the foot of Justice, which they had usurped in the rude times of the Sword, when men labour for life rather than liberty; and no less difficult to make a difference between their deportment in commanding of Soldiers, and governing of Countrymen; till peace by continuance had reduced them to a little more sobriety: Nor doth it seem irrational, that private differences between party and party, should be determined in a more private way, then to trouble the whole Representative of the Kingdom, with matters of so mean concernment. If then those Councils mentioned by the Author, which concern the King's Grants, and Infeodations, and matters of Judicature, be taken from the rest of the Precedents, brought by him, to maintain the thing aimed at; I suppose scarce one stone will be left for a foundation to such a glorying Structure, as is pretended in the Title page of that Book: And yet I deny not, but where such occasions have befallen the Parliament sitting, it hath closed with them, as things taken up by the way.  
Fourthly, It may be that the Author hath also observed, that all the Records of Antiquity passed through (if not from) the hands of the Clergy only, and they might think it sufficient for them to honour their Writings, with the great Titles of Men of Dignity in the Church and Commonwealth, omitting the Commons, as not worthy of mention, and yet they might be there then present, as it will appear they were in some of the particular instances ensuing, to which we come now in a more punctual consideration.  
The first of these by his own words, appear to be a Church-mote, or Synod; it was in the year 673. called by the Archbishop, who had no more power to summon a Parliament, than the Author himself hath: And the several conclusions made therein, do all show that the people had no work there, as may appear in the several relations thereof, made by Matthew Westminster, and Sir Henry Spelman, an Author that he maketh much use of, and therefore I shall be bold to make the best use of him that I can likewise, in Vindicating the truth of the point in hand: For, whatever this Council was, it's the less material, seeing the same Author recites a precedent of King Aethelbert, within six years after Augustine's entry into this Island, which was long before this Council, which bringeth on the Vann of all the rest of the Opponents instances, which King called a Council, styled, Commune Concilium tam Cleri quam Populi: 
Pag. 126.  and in the conclusion of the same, a Law is made upon the like occasion, Si Rex populum Convocaverit, etc. in both which its evident, that in those times there were Councils holden by the People, as well as the Magnates, or Optimates.  
His next instance is in the year 694. which is of a Council holden by the Great Men, but no mention of the Commons, and this he will have to be a Parliament, albeit that he might have found both Abbatesses, or Women, and Presbyters, to be Members of that Assembly, and (for default of better) attested the conclusions of the same, notwithstanding the Canon, Nemo militans Deo, etc. But I must also mind him, that the same Author reciteth a Council holden by King Ina, Suasu omnium Aldermannorum & Seniorum & Sapientum Regni: and is very probable, that all the Wise men of the Kingdom, were not concluded within the Lordly dignity.  
The third instance can have no better success, unless he will have the Pope to be allowed power to call a Parliament, or allow the Archbishop power to do that service by the Pope's command, for by that authority; this (what ever it be) was called, if we give credit to the relation of Sir Henry Spelman, who also reciteth another Council within three leaves foregoing this, 
Concil. Britt. Pag. 212.  called by Withered at Barkhamstead, unto which the Clergy were summoned, Qui cum viris utique militaribus communi omnium assensu has leges decrevere: So as it seemeth in those times, 
Ibid. pa. 194.  Soldiers or Knights were in the common Counsels, as well as other Great Men.  
In the next place, he bringeth in a Council holden in the year 747. 
Ibid. pa. 242. 245.  which (if the Archbishop were then therein Precedent, as it's said, in the presence of the King) was no Parliament, but a Church-mote, and all the conclusions in the same do testify no less; they being every one concerning Ecclesiastical matters.  

Pag. 219.  And furthermore, before this time, the Author out of whom he citeth this Council, mentioneth another Council holden by Ina the Saxon King, in the presence of the Bishops, Princes, Lords, Earls, and all the wise old Men, and People of the Kingdom, all of them concluding of the intermarriage between the Britons, Picts, and Saxons, which, formerly, as it seemeth, was not allowed: And the same King by his Charter, mentioned by the same Penman, noteth that his endowment of the Monastery of Glastenbury, was made, not only in the presence of the Great Men, but, Cum praesentia populationis; and he saith, that Omnes confirmaverunt, which I do not mention as a work necessary to be done by the Parliament, yet such an one as was holden expedient as the case then stood.  
Forty years after, he meeteth with another Council, which he supposeth to be a Parliament also, but was none, unless he will allow the Pope's Legate power to summon a Parliament: It was holden in the year, 787. and had he duly considered the return made by the Pope's Legate, of the Acts of that Council, 
Pag. 300.  which is also published by the same Author, he might have found, that the Legate saith, that they were propounded in public Council, before the King, Archbishop, and all the Bishops and Abbots of the Kingdom, Senators, Dukes, or Captains, and people of the Land, and they all consented to keep the same.  
Then he brings in a Council holden in the year, 793. which he would never have set down in the list of Parliaments, if he had considered how improper it is to construe, Provinciale tenuit Concilium, for a Parliament, and therefore I shall need no further to trouble the Reader therewith.  
The two next are supposed to be but one and the same; and it's said to be holden, Anno 974. before nine Kings, fifteen Bishops, twenty Dukes, etc. which for aught appears, may comprehend all England and Scotland, and is no Parliament of one Nation, but a party of many Nations, for some great matter, no doubt, yet nothing in particular mentioned, but the solemn laying the foundation of the Monastery of Saint-Albans.  
What manner of Council the next was, appeareth not, and therefore nothing can be concluded therefrom, but that it was holden in the year, 796.  
That Council which is next produced, was in the year, 800. and is called in great letters, Concilium Provinciale, which he cannot Gramatically construe to be a Parliament; yet in the Preface it is said, that there were, Viri cujuscunque dignitatis; and the King in his Letter to the Pope, saith concerning it, 
Pag. 321.  Visum est cunctis gentis nostrae sapientibus; so as it seemeth by this, and other examples of this nature, that though the Church-motes invented the particular conclusions, yet it was left to the Witagen-mote to Judge and conclude them.  
There can be no question, but the next three Precedents brought by the Opponent, were all of them Church-motes: 
Concil. Brit. Pag. 328.  For the first of them, which is said to be holden in the year, 816. is called a Synod, and both Priests and Deacons were there present, which are no Members of Parliament, consisting only of the House of Lords, and they all of them did, Pariter tractare de necessarijs & utilitatibus Ecclesiarum. The second of them is called a Synodall Council, holden, Anno 822. and yet there were then present, Omnium dignitatum optimates, which cannot be understood only of those of the House of Lords, because they ought all to be personally present, and therefore there is no Optimacy amongst them. The last of these three is called, Synodale Conciliabulum, a petty Synod in great letters; 
Concil. Brit. Pag. 334.  and besides, there were with the Bishops and Abbots, many Wise men; and in all these respects it cannot be a Parliament only of the great Lords.  
The next Council said to be holden in the year 823. cannot also be called properly a Parliament, but only a consultation, between two Kings and their Council, to prevent the invasion of the Danes; and the attests of the Kings Chapplain, and his Scribe, do show also that they were not all Members of the House of Lords.  
The Council cited by the Opponent in the next place, was holden, An: 838. being only in nature of a Council for Law, or Judicature, to determine the validity of the Kings Grant made to the Church of Canterbury, which is no proper work for a Parliament, unless it befall during the sitting of the same.  
The next is but a bare title of a Council supposed to be holden, An. 850. And not worth its room, for it neither showeth whether any thing was concluded, nor what the conclusions were.  
The work of the next Council alleged to be holden, An. 851. was to confirm the Charter of the Monastery of Croyland, and to determine concerning affairs belonging to the Mercians; and if it had been a Parliament for that people, it might be worthy of inquiry how regularly the Archbishop of Canterbury, and the Bishop of London, and the Ambassadors from the West Saxons could fit amongst them and attest the conclusions therein made, as well as the proper members of that Nation.  
He cometh in the next place to a Council holden in the year, 855. which is more likely to be a Parliament than most of them formerly mentioned; if the Tithes of all England were therein given to the Church, but hereof I have set down my opinion in the former part of the discourse. And though it be true, that no Knights and Burgesses are therein mentioned, as the Opponent observeth out of the Title; yet if the body of the Laws be duly considered, towards the conclusion thereof it will appear that there was present, Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates verò sua nomina subscripserunt. 
Concil. Brit. Pag. 350.  And yet the Witagen-motes in these times began to be rare, being continually inrerrupted by the invasions of the Danes.  
The three next Councils alleged to be in the years 930. 944. 948. Were doubtless of inferior value, as the matters therein concluded were of inferior regard, being such as concern the passing of the King's Grants, Infeodations, and confirmations.  
The Council mentioned to be in the year 965. is supposed to be one and the same with the next foregoing, 
Concil. Brit. Pag. 480.  by Sir Henry Spelman, which calls itself a general Council, not by reason of the general confluence of the Lords and Laity, but because all the Bishops of England did then meet. The Primi and Primates were there, who these were is not mentioned; but its evident that the King of Scots was there, and that both he and divers that are called Ministri Regis, attested the conclusions: It will be difficult to make out how these should be Members of the House of Lords, and more difficult to show a reason why in the attesting of the acts of these Councils which the Opponent calls Parliaments, we find so few of the Laity that scarce twelve are mentioned in any one of them, and those to descend so low as the Ministri Regis, to make up the number.  
Five more of these instances remain, before the coming in of the Normans.  
The first of which was in the year 975. and in a time when no Parliament, 
Concil. Britt. Pag. 490.  according to the Opponents principles could sit, for it was an Inter regnum.  
The two next were only Synods to determine the difference between the Regulers, and the Seculers, in the King's absence, by reason that he was under age; and they are said to be in the years 977 and 1009. But it's not within the compass of my matter to debate their dates.  
The last two were Meetings or Courts for Judicature, to determine the crime of Treason, which every one knows is determinable by inferior Courts before the high Steward or Judges, and therefore not so peculiar to a Parliament, as to be made an argument of its existence. And thus are we at an end of all the instances brought by the Opponent, to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords. All which I shall shut up with two other notes taken out of the Book of Councils, published by Sir Henry Spelman.  
The first of which concerneth a Grant made by Canutus, 
Pag. 534.  of an exemption to the Abbey of Bury Saint edmond's, in a Council wherein, were present Arch-Bishops, Bishops, Abbots, Dukes, Earls. Cum quamplurimis gregariis militibus, cum populi multitudine copiosa votis regiis unanimiter consentientes. The other taken out of the confessors Laws, which tells us that Tithes were granted to the Church, A Rege Baronibus & populo. 
Pag. 621.  And thus shall leave these testimonies to debate with one another, whiles the Reader may judge as seemeth most equal to himself.  
Being thus come to the Norman times, and those ensuing; I shall more summarily proceed with the particulars concerning them, because they were times of force, and can give little or no evidence against the customs rightly settled in the Saxon times, which I have more particularly insisted upon, that the original constitution of this government may the better appear. Now for the more speedy manifesting of the truth in the particulars following; I shall pre-advise the Reader in three particulars.  
First, that the Church-motes grew more in power and honour, by the aid of the Normans Law, refusing the concurrence and personal presence of Kings, whom at length they excluded from their Councils with all his Nobles; and therefore it is the less wonder if we hear but little of the Commons joining with them.  
Secondly, that the Norman way of government grew more Aristocratical than the Saxon, making the Lords the chief Instruments of keeping Kings above and people underneath, & thus we meet with much noise of meetings between the King and Lords, and little concernning the grand meetings of the Kings, and the representative of the people; although some footsteps we find even of them also. For Kings were mistaken in the Lords; who meaned nothing less them to serve them with the people's liberties, together with their own which they saw wrapped up in the gross.  
Thirdly, by this means the Councils of the King and Lords grew potent, not only for advise in particular occasions, but in matters of judicature, and declaring of Law, ordering of process in Courts of Pleas; which in the first framing were the works of Wise and Learned men, but being once settled become part of the liberties of every Freeman. And it is not to be doubted but these Councils of Lords did outreach into things two great for them to manage, and kept the Commons out of possession of their right, during the present heat of their ruffling condition, yet all this while could not take absolute possession of the legislative power.  
I now come to the remainder of the particular instances produced by the Opponent, which I shall reduce into several Categories, for the more clear satisfaction to the Reader, with less tediousness.  
First, it cannot be denied but the Council of Lords gave advise to Kings in cases of particular immergency, nor is it incongruous to the course of government even to this day, nor mere that the Parliament should be troubled with every such occasion, and therefore the giving of advice to William the Conqueror, what course he should take to settle the Laws of England according to the instances in Councils holden, An: 1060. And 1070. And to gain favour of the great men according to that in An: 1106. and in the manner of endowment of the Abbey of Battle, as in pag: 25. of the Opponents discourse: and what to do upon the reading of the Pope's Letter, according to that in An: 1114. And whether the Pope's Legate should be admitted, as in pag. 18. And how King Steven and Henry shall come to agreement, as An: 1153. And how to execute Laws by Judges and Justices Itinerant, as An: 1176. And touching the manner of ingageing for a voyage by Croisado to Jerusalem, An: 1189. And to give answer to Ambassadors of a foreign Prince, pag. 25. And how King John shall conclude peace with the Pope, An: 1213. Where nevertheless Math. Paris saith, 
Pag. 23.  was Turba multa nimis: I say all these might well be done by a Council of Lords, and not in any posture of a Parliament; albeit that in none of all these doth any thing appear but that the Commons might be present in every one, or many of them all.  
Secondly, as touching judicature, the Lords had much power therein, even in the Saxon times, having better opportunites for Knowledge, and Learning, especially joined with the Clergy, than the Commons in those times of deep darkness, wherein even the Clergy wanted not their share, as in the first part of the discourse I have already observed. Whatsoever then might be done by Judges in ordinary Courts of judicature, is inferior to the regard of the Parliament; and therefore the Plea between the Archbishop and Aethelstan, concerning Land, instanced, An: 1070. And between Lanfranke and Odo, An: 1071. and between the King and Anselme, pag: 15, 16. and the determining of Treason of John (afterwards King) against his Lord and King Richard, pag: 23. And the difference concerning the title of a Barony between Mowbray and Scotvile, pag: 25. And giving of security of good behaviour by William Brawse to King John, pag. 26. All these might well be determined only before the Lords, and yet the Parliament might be then sitting or not sitting, as the contrary to either doth not appear, and therefore can these form no demonstrative ground to prove that the Parliament consisted in those times, only of such as we now call the House of Lords.  
A third work whereby the Opponent would prove the Parliament to consist only of the House of Lords, is, because he findeth many things by them concluded touching the solemnisation, and the settling of the succession of Kings; both which, he saith, were done by the Lords in Parliament, or those of that House; and I shall crave leave to conclude the contrary: For neither is the election, or Solemnisation of such election, a proper work of the Parliament, according to the Opponents principles, nor can they prove such Conventions, wherein they were to be Parliaments. Not the election of Kings, for than may a Parliament be without a King; and therefore that instance concerning William Rufus, page 16. will fail, or the Opponents principles, who will have no Parliament without a King.  
The like may also be said of the instance concerning King Steven, page 18. Much less can the solemnisation of the election by Coronation, be a proper work for the Parliament: Nevertheless the Opponent doth well know that both the election of a King, and the solemnisation of such election by Coronation, are Spiritless motions, without the presence of the people; and therefore though his instance, page 17. concerning the election of Henry the First, by the Bishops and Princes, may seem to be restrictive as to them, yet it is not such in fact; if Matthew Paris may be believed, 
Mr. Seldens Title of Honor.  who telleth us, that in the Conventus omnium, was Clerus and Populus universus, and might have been noted by the Opponent out of that Learned Antiquary, so often by him cited, if he had pleased to take notice of such matters.  
A fourth sort of Instances, concerneth matters Ecclesiastical, and making of Canons; and hereof enough hath been already said, that such work was absolutely challenged by the Church-motes, as their proper work; and therefore the Instance, page 16, 17. of the Council in Henry the firsts time, and the Canons made by the Bishops there; and that other called by Theobald Archbishop of Canterbury, and instanced by the Opponent, page 19 I say, both these do fail in the conclusion propounded.  
Fifthly, As touching the most proper work of Parliaments, which is, the making of Laws concerning the liberties and benefit of the people; the Opponent produceth not one instance concerning the same, which doth not conclude contrary to his proposal; for as touching those two instances in his thirteenth page, Anno 1060. they concern not the making of Laws, but the reviving of such as had been difused formerly, which might well enough be done by private Council. But as to that in his fifteenth page, of the Law made by the Conqueror, concerning Remigius, Bishop of Lincoln, although it be true, that we find not the particular titles of Knights, Citizens, and Burgesses, yet besides the Council of Arch-Bishops, Bishops, Abbats, and Princes, we find the Common Council; for so the words are, Communi Concilio, & Concilio Archiepiscopus, Episcopus, Abatus, & omnium Principum, although the Opponent would seem to wave these words, Et Concilio, but putting them in a small Character, and the rest in a voluminous Letter, that the Readers eyes might be filled with them and overlook the other.  
Secondly, as to the instance of the Council at Clarindon, in his nineteenth page, which he citeth out of Matthew Paris, Matthew Westminster, and Hoveden, although he pleaseth to mention the several ranks of Great Men, and those in black Letters of a greater size; and saith, That not one Commoner appears, yet Master Seldens Hoveden, in that very place, 
Tit. Honour, Pag. 703.  so often by the Opponent cited, tells him, that both Clerus and Populus were there.  
Thirdly, The Opponent citeth an instance of Laws made by Richard the First, in his twenty fourth page, and he setteth down the several ranks of Great Men, and amongst the rest, ingeniously mentioneth, Milites, but it is with a Gloss of his own, that they were Barons that were made Knights, when as formerly Barons were mentioned in the general, and therefore how proper this Gloss is, let others judge; especially seeing that not only Milites, and Milites Gregorij, but even Ministri, were present in such conventions, even in the Saxon times: And Master Selden in the former known place, mentioneth an Observation, that, 
Tit. Honour, Pag. 703.  Vniversi personae qui de Rege tenent in Capite, sicut ceteri Barones debent interesse judicijs curiae Domini Regis cum Baronibus.  
Fourthly, He citeth in his twenty fifth page, another instance in King John's time, in which, after the assent of Earls, and Barons, the words, Et omnium fidelium nostrorum, are also annexed, but with this conceit of the Opponents, that these Fideles were those that adhered to the King, against his enemies; be it so, for then the Commons were present, and did assent; or they may be, saith he, some specially summoned as Assistants; take that also, and then all the true hearted in the Kingdom were specially summoned and were there, so as the conclusion will be the same.  
In the fifth place, he citeth a strange Precedent (as he calls it) of a Writ of Summons in King John's time, in his twenty seventh page, wherein Omni miletes were summoned, Cum armis suis, and he concludes therefore the same was a Council of Warr.  
First, Because they were to come armed, it's very true, and so they did unto the Councils in the ancient Saxon times, and so the Knights of the Counties ought to do in these days, if they obey the Writte, Duos Milites gladijs cinctas, etc.  
Secondly, He saith, That the Knights were not to come to Council; that is his opinion, yet the Writ speaks, that the Discreti Milites were to come, Ad loquendum cum Rege ad negotijs regni: Its true, saith he, but not, Ad tractandum & faciendum & consentiendum: Its true, it's not so said, nor is it excluded; and were it so, yet the Opponents conclusion will not thence arise, That none but the King, and those who are of the House of Lords were there present.  
The sixth and last instance mentioned by the Opponent, is in his thirtieth page, and concerneth Escuage granted to King John, who by his Charter granted, that in such cases he would summon Arch-Bishops, Bishops, Abbots, Earls, and the greater Barons, unto such Conventions by special Writts, and that the Sheriff shall summon promiscuously all others which hold in Capite; and thence he concludes, That none but the Great Lords, and the Tenants in Capite (whom he calls the lesser Barons) were present, but no Knights, Citizens, or Burgesses; all which being granted, yet in full Parliament the Citizens and Burgesses might be there. For Councils were called of such persons as suited to the matter to be debated upon.  
If for matters purely Ecclesiastical, the King and his Council of Lords, and the Churchmen made up the Council.  
If for advice in immergencies, the King and such Lords as were next at hand determined the conclusions.  
If for Escuage, the King and such as were to pay Escuage, made up a Council to ascertain the sum, which was otherwise uncertain.  
If for matters that concerned the common liberty, all sorts were present, 
Littlet. lib. 2. cap. 3.  as may appear out of the very Charter of King John, noted in my former discourse, 
Britt. Pa. 122.  page, 258. and also from an Observation of Cambden, concerning Henry the third, Ad summum honorem pertinet (saith he) Ex quo Rex Henricus tertius, ex tanta multitudine quae seditiosa ac turbulenta fuit optimos quosque ad Commitia Parliamentaria evocaverit.  
Secondly, The Opponent takes that for granted that never will be, Viz. That all the King's Tenants In Capite, were of the House of Lords; when as himself acknowledgeth a difference, page 28. Viz. That the Barons are summoned by Writs, Sigillatim, as all the Members of the House of Lords are, but these are by general summons, their number great, and hard it will be to understand, how, or when, they came to be excluded from that Society.  
I shall insist no further upon the particulars of this Tractate, but demur upon the whole matter, and leave it to judgement upon the premises, which might have been much better reduced to the main conclusion, if the Opponent, in the first place, had defined the word PARLIAMENT: For if it was a Convention without the People, and sometimes without the KING, as in the Cases formerly mentioned, of the Elections of William Rufus, and of King Steven: And if sometimes a Parliament of Lords only, may be against the King, and so without King or People; as in the Case between Steven and Maud the Empress, and the case likewise concerning King John, both which also were formerly mentioned; possibly it may be thought as rational for the Commons in after Ages, to hold a Parliament without King, or House of Lords; and then all the Opponents labour is to little purpose.   

An Historical Discourse of the uniform Government of ENGLAND.  

CHAP. I. Of the Britons, and their government.  
THis is Pritaine, or rather that part thereof in after ages called Saxony and England, from the people's names transplanted thither. The Britons (to lay aside all conceits of Fame) I take to be an issue of the neighbouring Nations from the Germane and Belgic shores; induced hereto partly by the vicinity of the names of the People's, Cities, 
Caes. come. l. 5.  or Towns, and places, but more of their manners and customs, both in Religion and civil Government. Barbarians they were, and so esteemed by the Romans that were but refined Barbarians themselves; and yet they worshipped an Invisible, Infinite, 
Tacit. Anal. 14. Amian. lib 15. Caes. come. lib. 6 Tacit.  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 then that of brutish men.  
In their civil Government they allowed preeminence to 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. come. lib. 5  Of liberties not much exceeding those of a City; and these (though in time of peace independent upon each other, yea perpetual enemies, yet) in time of foreign war, joined together to choose 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 Emperor, who expressly 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 called Tyrannorum gens, 
Hieron.  the word being taken mitiori sensu, or from a common repute of excessive cruelty or oppression by superiors. As touching their cruelty, I find no footsteps in story: somewhat reflecteth upon their Sacrifices, as if they offered man's flesh; 
Caes. come. 6.  but that was common to the Gaults, who borrowed their Religion from Britain; and it might be founded rather upon an error in judgement then savageness of nature. Much less cause doth appear of any cry of oppression upon inferiors, 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 its 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 bend 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 lighteneth 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, 
Isa. 42.4.51.5.60.9.66.19.  Isles afar off, as if amongst them the Lord of all the earth had found out one place that should be to him as the Gem 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 busy myself to find out the particular instruments that brought God's presence into this dark corner; but only glance at the time and manner, that it may appear we were not forgotten, nor yet last, or least in mind, at that time of the dispensation of this grace unto all men. I dare not instance as Gildas, the certain time of six years; yet I may say, that no sooner was the Sceptre departed from Judah, but with a swift pace both it and the Lawgiver came hither like an Arrow flying through other Countries, but sticking with a ne plus ultra in this Island (than a People rather than a Commonweal) as if we were the only 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 Apostolic times; for that in the second Century Britain was a Church of Fame, and known to the Fathers that dwelled afar off, even to Tertullian and Origen, and in a short time had out-reached the Roman confines in that Island (which had cost them above two hundred year's travail) and was grown to the state of the first Christian Kingdom that ever was: 
Tertul. adv. Judaeos.  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; and although the Roman Church began within fifty years after the death of John the Evangelist, 
Platina. de vit. Eleuthe.  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; which reflecteth probability, 
Beda. l. 3. cap. 25.  that the Church was there settled in times of indifferency, not by Roman order, but by some other purposed messenger.  
The manner yet is more remarkable, for that not only Principalities and Powers, and Spiritual wickednesses in high places (which are but stumbling-blocks) but also natural wisdom of the Druids, 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 mere foolishness; and above all, the deep obligement of the people unto these their Rabbis, in a devotion beyond the reach of other Nations; all these, I say, stood in the way, and rendered 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 Conqueror of all Nations attempts Britain not in the rear, nor by undermining, but assails them in their full strength, presents in a clear Sunshine that one true Sacrifice of God man; at the appearing whereof their shadows of many Sacrifices of man's flesh fly away. And thus those Druids that formerly had dominion of the Britons faith, 
Origen. hom. 4. Ezek.  become now to be helpers of their joy, and are become the leaders of the blind people in a better way, and unto a better hope; and held forth that light which through God's mercy hath continued in this Island ever since through many storms and dark mists of time until the present noonday.   

CHAP. III. Of the entry of the Romans into Britain, and the state thereof during their continuance.  
THis conversion of the Druids was but the first step to that which followed; for the Decree was more full of grace then to make this Isle to be only as an Inn for him to whom it was formerly given for a possession; 
Ps. 2.8.  The Romans are called in to the work, under whose Iron yoke 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 entered Britain before the Incarnation, and having seen and saluted it, and played his prize, 
Tacit.  returned with the fame only of conquest of some few Lordship's neighbouring to the Belgic shore; and so it continued correspondent to the Romans, or rather forgotten of them till the time of Claudius the Emperor, 
Vit. Agric.  who being at leisure to bethink him of the Britons tribute, or rather aspiring to honour by a way formerly untrodden by his Ancestors, first settled Colonies in Britain, and brought it into the form of a Province, and engaged his successors in a continual war to perfect that work, which outwearied their strength at last, and made them forgo the prey, as too heavy for the Eagle to truss and carry away.  
It oft befalls 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 vainglory in the Romans that must needs be fatal to the Britons liberty and welfare: yet by overruling providence it conduced so much to the Britons future glory, as it must be acknowledged one of the chief masterpieces of supernatural moderatorship that ever this poor Island met with. First, it 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 only in the way; for tractableness, if good ensue not, is of itself 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 to go that way to work; 
Tacit. vit. Agric.  for its an easy and Royal work to govern wise men, but to govern fools or mad men is a continual slavery; and thus religion already settled in Britain became honoured with a train of attendants, and handmaids. Thirdly, they reduced the number of little Lordship's 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, then coordinate 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. For first, Religion spreads sooner under one uniform government, then 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 entered. 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 itself jointly 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 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 bitter storms of bitter persecution, and so was compelled to bear a low sail; but some being more debonair, and of wiser observation, soon found, that the way of justice and gentleness had more force in Britain then 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 bend 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 Emperors themselves, and under the wise government of Aurelius the Emperor 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 Emperors, 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) scent over learned men to preach and baptise both King and people; and in this, Rome might probably gain some honour, 
M. Westm. an. 181.  although possibly the King intended it not, or muchless to acknowledge 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 settled a form of Church-government under the three Archbishops of London, York, and Caerlion upon uske, and 28 Bishoprics; 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 days 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 hid their heads: or if such times had been, it would have been expected that Bishops in those days 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 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, nor other Clergyman, 
M. Westm. an. 303.  but quendam Clericum, a man it seems of no note, and of unknown name. In charity therefore the English Church in those days must be of mean repute for outward pomp; and not lifted up to that height of Archbishops, when as Rome itself 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 splendour of the state of the Roman Church and Commonweal; the only favourite of fame in those times through the Northern parts of the World. Things afar off I confess are dim, and its 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 Latin, and then translated into British for the people's satisfaction; and in that Language (the original being lost) traduced to posterity; and then by some Latin writer in after ages returned into Latin, and so derived to these times (all which very probably hath been) such occasions of exceptions might 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, and so contrary to the dregs of Romulus, 
Cic. Attic. 2.  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 syllabicall 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 King's 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 soldiers concerning form of government of a Commonweal? or if some exceeded the ordinary strain in policy, yet they were too wise to communicate such Pearls to conquered Nations, that aught to look no higher than the will of the Conqueror, and subsist in no better condition than may be controlled by the Supreme Imperial Law of the Lord Paramount: or if in this they had corresponded to the desires of the Britain's, 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 then 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 easy for the Magistrate, quiet for the people, and delightful to all; because men's minds are settled in expectation of future events in government according to the present rule; and changes in course of government are looked at as uncouth motions of the Celestial bodies, portending judgements or dissolution. This was the way of humane wisdom; but God had an eye on all this beyond all reach of preconceipt of man, which was to make England happy in the enjoying of a better Law and government than Rome, how glorious soever than 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 borne 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 than the Empire grew; the Emperors many of them so vicious, as they were a burden 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 Emperor, and so were soon removed; or too bad for the people of the Land, and never suffered to rest free from tumults and insurrections: neither Lucius could prevail, nor any of his successors. But passing through continual cross floods of persecutions under Maximinus, Dioclesian and Maximinianus, and many civil broils, till the times of Constantine, at length it attained the haven.  
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 shown 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 persuade 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, whenas the presence of the British Bishops are found at the Synod by him called at Arles, viz. the Bishops (not Archbishop's) of London and York, 
Concil. Brit. 42.  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 other Bishops had attained. And thus God ordered first the settling 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 learnt 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 was 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 Roman Masters, who like Gallio looked upon the Church affairs as out of their Sphere, and therefore cared for none of those things; or if the zeal of any See far prevailed, it was much in favour of the Bishops upon whom the Emperors 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 this 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 Idea of deportment, like that of the second beast in its infancy: Nor did the Britons espy their danger herein, for they had been used to idolise their Druids; and it was no more but faces about to do as much for their Bishops. Of this power of Synods I shall propound but three precedents, and so draw to a conclusion of what I think meet to note conconcerning the British affairs. I suppose it will not be doubted but that public consultations concerning the public government of any place or Nation, ought not to be called but by the Supreme power; and that such consultations are to be directed by that Supreme power. The Britons had a King, and yet without his consent they call a Synod against the Pelagian Heresy, 
M. Westm. An. 446. Beda. Lib. 1. cap. 17.  and choose a Moderator from beyond the Sea, and by that Synod not only overwhelmed the Heresy, but excommunicated their King. This was a Nationall Synod, and might well stand with the rule of State, which then had seated the Supreme 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 befell in the cases of Moris and Morcant. 
Concil. Brit. p. 49, 62, 382.  Or that such a Synod should intermeddle in matters of meum and tuum, as in the case of Loumaek, who having invaded the patrimony of the Church, the Bishop of Landaff in a Synod of his Clergy enjoined him penance; 
Concil. Brit. 385.  and the like befell unto B ockvaile, who was compelled by the Synod to make amends to Civiliack Bishop of Landaff for injury to him done: which I note not by way of imputation; for this exorbitancy (if so it were) might correspond with these times wherein very probable it is that justice could not be had elsewhere; and had the Clergy been as 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, 
Gildas.  and a burden that God would endure no longer; which rendereth their Synod liable to exception, as being such as were either lifted up, or drawn aside, and as the List to the Cloth, showeth 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. IU. 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 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 foreign service, the remainder but few, and these exceeding vicious; and which was worst of all, engaged by the Romans in a war with the Picts, against whom the Romans themselves found it too burdensome for them to hold out, without the help of a wall: and albeit that the very name of an old servant of four hundred year's continuance might have moved a Roman heart to commiseration, 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, then to call in a new people whose qualities they were ignorant of, and at the best to make them their companions, who might prove (as they afterwards did) both Lords and Masters over them. But there is no reason against Gods will. The Britons needed present help, 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, 
Aman, l. 26.  and left the future to look to itself. 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: Only the Saxons are in the thoughts of the Britons, a mighty people not fare off, 
Zossimus hist. lib, 3.  able to mate the Romans in their chiefest pride, and though in a manner borderers upon the Roman world, yet unsubdued by them, used to the wars, mighty at Sea; and now given over by the Romans in a plain field, were at leisure, and so well knew the way to Britain, that the Romans entitled the coasts of Norfolk and Suffolk the Saxon coasts, 
Amian. lib. 28, 30.  from the many visits that the Saxons had already made into those parts full sore against the Romans wills.  
I hold it both needless and fruitless to enter into the Lists concerning the original of the Saxons; whither they were natives from the Northern parts of Germany, or the relics 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, 
Suffeid. Petrus Fris. antiquit. lib. 3. cap. 1.  as if not by the relics of Alexander's army (which is generally agreed emptied itself 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 man's flesh rigged according to the Grecian guise, 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. come.  but by the people; and therefore called a free people, because they are a Law to themselves; and this was a privilege belonging to all the Germans, as Tacitus observeth, in cases of most public consequence (de majoribus omnes) like unto the manner both of the Athenians and Lacedæmonians in their Concio. 
Histor. Germ. Plutarch. vit. Solon. & Lycurg.  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 public safety) were by that general vote concluded and ordered, seems probable by their manner of meeting with their weapons. But such matters as were of less concernment the Council of Lords determined de minoribus Principes, 
Albinus. Sax. 72.  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 judicatory power of distributive justice committed to them, 
Tacit.  together with one hundred of the Commons out of each division. The election of these Princes with their commission was concluded inter majora by the general assembly; and they executed their commission in circuits, like unto the Athenian Heliasticke or Subdiall Court, 
Emius.  which was rural and for the most part kept in the open air; in brief, their judicials were very suitable to the Athenian, but their military more like the Lacedaemonian, 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 bore 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 God's instrument. They worship an invisible and an infinite Deity: man's 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, coelumque suspiciens; and this done by the Priest of the Town (if it be in public causes;) or otherwise, if private, then by the master of the family; so as they had family-worship as well as public. These things I note, that it may appear how nigh these invited guests resemble the old Religion of the Britons, 
Avent. Anal. Bower 1.10. Bruiter. in Tacit. 125.  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 Germane Nations; 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 Britain's 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) they were no better than highway men both by Sea and Land, 
Amian.  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 picked quarrels with their Host, made peace with the Picts, and of feigned friends becoming unfeigned foes to the Britons, scattered a poor remnant of Christians, some to the furthest corners of the Kingdom, others into foreign Nations, like so many seedesmen 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 then they either expected, or desired. And thus the miseries of poor Britain became riches of mercy to the North and Eastern people; and the ruins here, the foundations of many famous Churches elsewhere. 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 later; 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 be given thereof, other than God's extraordinary dispensation in a judiciary way, when he seethe 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 peoples in the conclusion.   

CHAP. V Of Augustine'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 then 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 Empire having removed the Imperial residence to Constantinople weakened the Western part of the Empire, and exposed it not only to the foreign invasions of the Goths, Vandals, Herules, Lombard's, and other floats 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 road the storms of foreign force, and took advantage of those public calamitous times to insinuate deeper into the consciences of distressed people, that knew no other consolation in a plundered estate, but from God and the Bishop, who was the chief in account amongst them; the beauty of the Bishop of Rome thus growing in the West, made him to outreach not only his own Diocese 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 this 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 settled, so as some fat may be had; then an instrument is sought after for the work, and none is found so fare 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 publicly 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 rendered the Latria to God, and the Dulia to Rome. The Saxons were not wholly destitute of Religion; and that, Gregory himself in his Letter to Brunchilda the French Queen confesseth: Indicamus, saith he, ad nos pervenisse Ecclesiam Anglicanam velle fieri Christianam; 
Greg. Epist. lib. 5. Epist. 59  so as there was a good disposition to religion before ever Austen came, and such an one as rang loud to Rome. But fare more evident is it from the Saxons keeping of Easter more Asciatico, which custom also continued after Austin's coming fifty years, sore against Austin's will: 
Bed. hist. lib. 3. cap. 25.  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 shown) conversed with the Christian Britain's and Picts above 150 years without all touch of their Religion. 
Bed. hist. lib. 1. cap. 23. Lib. 3. cap. 4.  If we then take Austen in his best colour, he might be said to bring religion to the South-Saxons, after the Roman garb; and his hottest disputes about Easter, Tonsure, the Roman supremacy and his own Legatine power, 
Bed. hist. lib. 1. cap. 27. Lib. 2. cap. 2.  and his worthy Queres to the Pope show he regarded more the fashion then the thing; and the fashion of his person more than the work he pretended; for he loved state, 
Greg. Epist. l. 7. Epist. 13.  and to be somewhat like to the Legate of an Univerall Bishop; and therefore of a Monk he suddenly becomes a Bishop in Germany, before ever he had a Diocese, or saw England; 
Concil. Brit. 92.  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 Britain's 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, and a devout woman; 
Bed. hist. lib. 1. cap. 25. Greg. Epist. lib. 9 Epist. 59  she first brought Austen into acceptance with the King, who also at that present held the chief power of all the Saxon Kings in this Isle, which was now of great efficacy in this work; for where Religion and power flow from one spring in one stream, its hard to choose the one, and refuse the other. And thus Rome may thank France for the first earnest they had of all the riches of England, and we for the first entrance of all our ensuing bondage and misery. 
2 Thes. 2.  Austen had also a gift or trick of working miracles, wherein whither more suitable to the working of Satan or of God I cannot define. It seems they walked only in the dark; for either the Britons saw through them, or saw them not; nor could Austen with his miracles or fineness settle one foot-step of his Church-policy amongst them; happily they remembering the Roman Dagon, liked the worse of the Roman woman; and the rather because the Carriage of their messenger was as full of the Archbishop, as it was empty of the Christian: I would not touch upon particular passages of action, but that it's so remarkable that Austen himself, but a novice in comparison of the British Bishops (the clearest lights that the Northern parts of the world than had) and unto whom the right hand of fellowship was due by the Roman Canon, should nevertheless show no more respect to them at their first solemn entrance into his presence then to vassals, as I could not but note the same as a strong argument that his whole work ab initio was but a vapour of Prelacy. This the British Bishops soon espied, and shaped him an answer 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:  
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 in the person of Henry the eighth that came of that blood by Teuther, the first that took away that power again. Austen having met with this affront, and perceiving that the Britons were stronger in their faith then he by his miracles, cast about to try the Saxons courtesy, that what the Ephod could not, the Sword wrapped up therein should. 
Bed. hist. lib. 2. cap. 2. Concil. Brit. fo. 111.  I say not that he procured, but he threatened or prophesied the destruction of the Monks of Bangor; and it came to pass, and it's by writers loudly suspected. Nevertheless the Saxons were not so zealous of their new Religion, as to make a new Nationall quarrel between the Britons and themselves, but left the game to be played out by Austen: who finding by experience that it would not prove the work of one man, left it to successors to work out by degrees in efflux of time. And thus Austen 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 foreseen, 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 subtlety and mischief, guided principally by occasion, and overruled by the Justice and Wisdom of God, to make a yoke for Monarches, 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 Austen 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 settled in that Church; the Saxons had no principles of their own, 
Tacit. mor. Serm.  (for they had no learning) and to go to the Britons for a pattern might be thought ignoble; and where the choice is small it's 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 provocation: For the Saxons had a Commonweal founded in the liberty of the people; and it was a masterpiece for Austen and the Clergy, so to work as to remain members of this Commonweal, 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 saw plainly that the times were too tender to endure them to be declarative on either part, and therefore they chose a third way, which was to preserve the 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 Commonweal could not well subsist, no more than a body without a soul; and that few occasions should befall but at least in ordine remoto must reflect upon both; and then all reason will be speak them to join 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's 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 beteer condition; it was hard for them to be baptised and not to be baptised into Rome, and commonly under such a Covenant as though many might repent of, yet none durst amend: for when as the Pope is Lord of the consciences of the People, the King's power may sometimes outface, but can never govern; the Saxon Kings were therefore feign to make a virtue of necessity, and advance Bishops to be common favourites 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 might oftentimes command, and yet go without. Thus enter 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 so intoxicated the domestic 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 Austen had) Roman Prelacy in these younger times was but Velvet-headed, and endured not much greatness or big titles, but spoke 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: 
Greg. Epist. ad Eulog.  and whereas he had in a way of Courtship called Gregory's counsels commands, he startles at it; quod verbum jussionis saith he, peto a meo auditu removere, quia scio quis sum & qui estis. Thus Prelacy first conveyed itself 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 show 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. 
Concil. Brit. p. 258.   
Thus witnesseth Boniface 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. For long before Boniface his time Archbishops were swollen beyond the girt of the Canon; 
An. 745.  and before that England was honoured with that rank of men, Metropolitans were become Metronomians, 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 underground in the time of the hottest persecution: for Steven Bishop of Rome liked the title of universal Bishop. 
Mag. cent. 3. cap. 7.  And after a little peace it's a wonder how it grew to that height that it had; And no less wonderful that the Saxons gave entertainment to such potentates. Much of whose spirit they might have observed in the entrance of their first Archbishop Austen, if God had not given them over to thraldom under that 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 Metropolitan Bishop to rule God's Churches; to govern, choose, 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's very likely that in those days 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 precedent, 
An. 694. Ant. Brit. p. 55.  and who was first Primate of England. Theodore Archbishop of Canterbury used such power over other Bishops in ordaining and removing them, as a writer saith, 
Malmsb. lib. 1. cap. 2. Ant. Brit. p. 54.  that his rule was no other than perturbatio and impetus animi, and his carriage towards Wilfrid produced as a testimony. But the Metropolitan in England as the times than were, had yet a further advantage, even over Kings themselves; 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 God's 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 Popedomes as Provinces. But no doubt God ordered it for a scourge to the world, that Antichrist should be but one, that he might be the more absolute tyrant, and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops, for their rebellion against the King of Kings.   

CHAP. VIII. Of the Saxon Bishops.  
HAd not Bishops been somewhat suitable, the Roman Clergy had not been like itself; and it had been contrary to Augustine's principles to have advanced to Bishoprics men better qualified then himself. They first ruled the Saxon Church jointly in the nature of a Presbytery till about sixty years after Augustine'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 Dioceses, 
Ant. Brit. 52. Concil. Brit. 133. Ant. Brit. 54, Ibid. 53.  and by appointment of them Kings and people placed Bishops over each, every one of them being of the right Roman stamp, 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's 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 Bishop's work was to instruct and teach, to see the service of God to be diligently and purely administered in public congregations, 
Concil. Brit. 238, 246, 261.  to exhort, reprove, and 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 and truth, and meddled not with secular affairs: they are now grown up into state, and must now ride on horseback that were wont to go on foot preaching the Word; 
Bed. hist. lib. 4. cap. 3.  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, 
Concil. Brit. 196. An. 697.  sine juramento sit irrefragabile. Their presence must be a Sanctuary against all violence; all Clerks and religious houses must stoop under their power; 
Ibid. 329. An. 816.  their sentence must be definitive: and thus advanced they must keep state, viz. not go too fare 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 Emperors; 
Concil. 8. gen. constant. can. 14.  and if any Bishop shall behave himself otherwise, and after the old rustical fashion, (for such are the words of the Canon) for disgrace done to theitr dignity they must be suspended: so as by their own confession Bishops henceforth are Bishops of a new fashion, that must incur a note of infamy, for showing any gesture of humility to Princes: which if any man will see more fully, ler him peruse the Canon if he please. But this is not sublime enough; they must be not only equal, but in many respects superior to Princes: for in matters that concern God, Omnibus dignitatibus praesunt; and more plainly, Princes must obey them, 
Mag. cent. 8. cap. 9  Ex corde cum magna humilitate; and this was allowed of by Offa the great in a legatine Synod. And thus highly advanced Bishops are now consecrated to any work, and make every thing sacred. 
Concil. Brit. 182. An. 693. Ll. Sax. cap. 37.  Oaths taken before them are of highest moment; and therefore the trial of crimes before them, and the acknowledgement of deeds of conveyance in their presence are without control. 
An. 928. Ll. Aethelst. cap. 11. Concil. Brit. Concil. Brit. p. 197. An. 697.  Their custody is a sufficient Seal to all weights and measures, which they committed to some Clerk whom they trusted; and at this day (though a Lay-person) beareth title of Clerk of the market. And although anciently they might not interest secularibus; yet afterwards it became a part of their Office to assist Judges in secular causes, to see that justice be not wronged: and had the sole cognisance of all causes criminal belonging to the Clergy, their tenants or servants; and in their Synods their power reached to such crimes of Laymen as came within the savour of the Canon, though it were but in the cold sent, 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; 
Concil. Brit. p. 576.  for being of the same Order (as the less proud times acknowledged) they would not be under foot, 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; for they knew well enough that the Presbyters must be their bridles to lead and curb the people; 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. They see it therefore necessary to enhance the price of a Presbyter somewhat within the alloy of a Bishop; to the end that the Presbytery may not be too like the Babylonian Image whose head was Gold, and feet of Iron and Day. A Presbyter therefore they will have to be of equal repute with a Baron; 
Concil. Brit. p. 448. Ll Ethelst. 13. Ibid. 406. Concil. Brir. p. 273. L. Aethel. c. 2. Ll. Canut. c. 12. Mag. cent. 8. cap. 9  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 Bishop's 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 inferior Church-Officers amongst the Saxons.  
THey had other inferior degrees of the Clergy, which because they are merely subservient, and not considerable in Church-government, I shall only touch upon them. The first are called Deacons, 
Deacons.  which were attending upon the Presbyters to bring the offerings to the Altar, to read the Gospel, to baptise, and administer the Lords Supper: Then follow the Subdeacons' who used to attend the Deacons with consecrated vessels, 
Sub. Deacons.  and other necessaries for the administering of the Sacraments. 
Acolites.  Next these Acolites, which waited with the Tapers ready lighted while the Gospel was read, and the Sacrament consecrated. Then Exorcists, 
Exorcists.  that served to dispossess such as are possessed by the Devil, an Office (as it may seem) of little use, 
Concil. Brit. p. 54. Lecturers.  yet very ancient; for they are found at the Synod at Arles, which was within three hundred years after Christ's death. Lecturers come next, who served to read and expound; and these were of use when Churches began to multiply, and Presbyters grew idle. Lastly, Ostiaries; 
Ostiaries.  which used to ring the bells, and open and shut the Church-doores.  
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. An. 750.  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, 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 Abbats and Priors, & other such religious men, as they were then called; nor can I pass them amongst the number of Church-governors' 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 public worship of God, and regard of the salvation of the souls of the people; I say their maintenance was diversely raised, and as diversely employed: First, through the bounty of Kings and great men, Lands and Manors 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 husbandman's 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 precedent with their heathenish Priests and Druids; as Caesar noteth, 
Com. 6.  that they had omninm rerum immunitatem:) yet with the exception of works of public charity and safety, such as are maintaining of high ways, repairing of bridges, and fortifying of Castles, etc. and hereof the precedents 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 King's Subjects were exempted from public service, but much of the Revenue of the Kingdom formerly employed for the public 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, 
M. Paris in vit. Eadrick. Abb.  and complained thereof to their Kings, but could not prevail. This was the vintage of Kings and great men, but the glean of the people were much more plentiful; (for besides the Courts which swollen as the irregularities of those times increased, and thereby enriched the coffers of that covetous generation, 
An. 1009. Concil. Brit. 523. Ll. Aetheld. 31.  the greatest part whereof aught by the Canon to go to the public) the best part of the settled maintenance, especially of the inferior degrees, arose from the good affections of the people, who were either forward to offer or easily persuaded to forgo constant supply for the Churchmen 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, 
First-fruits.  which was by way of eminency called Cyrick-sceate, or in more plain English, Church-fee; which was always payable upon St Martin's 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. An. 693. Concil. Brit. p. 545.  It was first granted by Parliament in the time of King Ina; and in case of neglect of payment or denial it was penal eleven-fold to the Bishop besides a fine to the King, as was afterwards ordered by Canutus.  

Tithes. Concil. Brit. p. 298. An. 787.  After the first fruits cometh to consideration the Revenue of Tithes, whereof I find no public act of state to warrant till the Legatine council under Offa: although the Canon was more ancient. The Bishop at the first was the general receiver as well of these as of the former, and by him they were divided into three parts, and employed one to the poor; another for the maintenance of the Church; 
Concil. Brit. 259.  and a third part for the maintenance of the Presbyter. But in future times many acts of state succeeded concerning this, 
Ingulsus.  amongst which that grant of Athelwolfe must be a little paused upon. Some writers say that he gave the tenth mansion, 
Gest. pontiff. Lib. 2. cap. 2.  and the tenth of all his goods: but Malmsbury saith, the tenth of the hides of Land; but in the donation itself, as it's by him recited, it's the tenth mansion. But Math. 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 itself is uncertain and varions, 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 Math. Westm. countenanceth the same, albeit the Historian observed it not; but suppose that the Kingdom joined with the King in the concession, and that it was the course to pass it only in the King's 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 man's possession must have issued a proportionable supply, or lastly a tenth part of every man's possession, or house and land, 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 public act of state, and that clause forgotten by Historians. 
Concil. Brit. p. 392. An. 905. Ibid. 527. An. 1009.  And thus might a good precedent be led to Alfred, Athelstan, and other Kings, who settled Laws under payment of penalties, and appointed the times of payment, viz. the small Tithes at Whitsuntide, and the great Tithes at Alhollantide.  
Another Tribute was that of Luminaries, 
Luminaries. Concil. Brit. p. 377. Ibid. 545. An. 1032.  which by Alfred and Gunthrun was first settled by Law, although it had been before claimed by Canon. It was payable thrice a year, viz. Hollantide, Candlemas and Easter, at each time a half penny upon every Hide of Land, and this was under a penalty also.  

Ploughalmes. An. 905.  Another Income arose from the Plough, and under the name of Plough-almes: at the first it was granted by Edward the Elder generally, 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.   

Souleshot. Concil. Brit. d. 571. An. 1009.  Next comes a fee at the death of the party, which was commonly called Soul-shot: and paid (before the dead body was buried) unto that Church where the dead parties dwelling was; so as they never left paying and ask so long as the body was above ground; and its probable turned into that fee which was afterward called a mortuary.  
The incumbent also of every Church had Glebe laid to the Church; 
Glebe. Concil. Brit. 260. An. 750.  besides oblations, and other casual profits, as well arising from houses bordering upon the Church, 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 settled.  

Peterpence.  Lastly, the zeal of the charity of England was not so cold as to contain itself within its own bounds: 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 Heordpenny; for it was a penny upon every hearth or chimney, payable at the Feast of St Peter, ad vincula; and therefore also called Peter-pences; it was for the Pope's use; and was settled under great penalties upon the defaulters. It arose by degrees and parcels: 
Concil. Brit. p. 230. An. 725.  for first Ina the Saxon King granted a penny out of every house in his Kingdom: 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 Alban: This Offa had a much larger Dominion than Ina, and was King over three and twenty shires: after whom Aethelwolfe passed a new grant thereof out of his whole Kingdom, 
Ibid. 343. An. 847.  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 only for that house wherein he dwelled at the time of payment. 
Ibid. 621.  Afterward Edward the Confessor 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 public consent of the people; and then the assertions of Polidore 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 of the gift, seeing there is a much more difference between an Alms and a Tribute then between the King and the people. Now that it was an Alms and not a Tribute, may appear, for that the original was a sudden pang of zeal, 
Vit. Offae. 29.  conceived and borne in one breath, while the King was at Rome; and therefore not imposed as a Tribute. Secondly, it was ex regali munificentia, and therefore free. Thirdly, it was expressly 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, ●4●. Concil. Brit. p. 621.  and enjoineth that they must be paid to the King, and not to Rome, as it was in the days of Canutus, and Edgar, rendereth the reason thereof to be, because it was the King's Alms.  
Secondly, that it was an Alms only 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 only out of such houses as yielded thirty pence rend, called vivae pecuniae, because in those times rend was paid in Victual; so as it may seem that only Farms were charged herewith: and not all men's 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 levy upon the inhabitants dwelling in nine several Dioceses, viz. Hereford, which contained the City and County adjacent. 2. Worcester, containing the Cities and Shires of it and Gloucester. 3. Lechfield, containing Warwickshire, Cheshire, Staffordshire, Shropshire, and Darbishire. 4. Leicester, with the County adjacent. 5. Lincoln, with the County adjacent. 6. Dorchester, whereto belonged Northamptonshire, Buckinghamshire, Bedfordshire, Huntingtonshire, Cantabridgeshire, and half Hartfordshire. 7. London, with Essex, Middlesex, and the other half of Hartfordshire. 8. Helmham, with Norfolk. 9 Domuck or Dunwich with Suffolk. In which nine Dioceses were two and twenty shires. And he further granted it out of Spatinghenshire (now Nottingham) whose Church belonged to York. But in Ethelwolfes' time the grant was enlarged and extended into fifteen Dioceses; which together with their several charge out of the English Martyrology I shall particularise, 
Fox Martyr. p. 340.  as followeth:  
 l. s. d. Cantuar. Diocese. 07. 18. 0. London 16. 10. 0. Roffen 05. 12. 0. Norwic. 21. 10. 0. Elienum 05. 00. 0. Lincoln 42. 00. 0. Cistrens 08. 00. 0. Winton 17. 06. 8. Exon 09. 05. 0. Wigorn 10. 05. 0. Hereford 06. 00. 0. Bathon 12. 05. 0. Latisburgh 17. 00. 0. Coventree 10. 05. 0. Ebor 11. 10. 0.  200. 06. 8.  
The whole sum whereof not exceeding two hundred pounds six shillings and eight pence, will not amount to seven hundred pounds of now currant money, if the weight of a penny was not less in those times then in the reign of Edward the first, when it was the twentieth part of an ounce, and that the twefth part of a pound, as by the statute thereof made may 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 Bishopric of Ely, 
Brit. Antiq. p. 18.  which was in the time of Henry the first. Now albeit this charge was in future times diversely ordered and changed; yet upon this account it will 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 inferior to the proportion of houses in these times, if Polydores observation be true, that in the conquerors time there were sixty thousand Knights fees; and as others, fifty thousand Parishes. It may therefore be rather thought that none but the King's 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-governors' amongst the Saxons.  
THe Church-officers thus called to the Drum and paid, are sent to their several charges, over Provinces, Dioceses, Deaneryes, and Parishes, 
Malms. gest. Reg. lib. 1. c. 4.  as they could be settled by time and occasion. Before the Saxons arrival, London had the Metropolitan See, or was chiefest in precedency; for Archbishops the Britons had none. Afterwards by advice of the wise men, Canterbury obtained the precedency for the honour of Austin, who was there buried. The number of Provinces, and their several Metropolitan Sees was first ordered by advice of Pope Gregory, 
Bed. hist. lib. 1. cap. 29.  who appointed two Archbishops in Saxony; the one to reside at Canterbury, the other at York; and that each of them should have twelve Bishops under them; but this could never be completed till Austin was dead; as by the Epistle of Kenulphus to Pope Leo appeareth. 
Malmesb. loco. citat.  Nor then had the Pope the whole power herein entailed to his Tripple-Crowne; for the same Epistle witnesseth, that the council of the wise men of the Kingdom, ruled the case of the Primacy of Canterbury. 
Vit. Offae. Malmesb. Concil. Brit. 133. Antiq. Brit. Antiq. Brit. p 54. M. Westm. An. 775.  And Offa the King afterward divided the Province of Canterbury into two Provinces, which formerly was but one. The Precincts of Dioceses have been altered ordinarily by Kings, or the Archbishops and their Synods, as the lives of those first Archbishops set forth. Theodore had divided his Province into five Dioceses, and within a hundred years after Offa we find it increased unto eleven Dioceses.  
Dioceses have also been subdivided into inferior Precincts called Denaries or Decanaries, the chief of which was wont to be a Presbyter of the highest note called Decanus, or Archpresbyter. 
Ll. Edw. conf. cap. 31. Lindwood. l. 1. de constit. c. 1.  The name was taken from that Precinct of the Lay-power, called Decennaries, having ten Presbyters under his visit, even as the Decenners under their chief. The smallest precinct was that of the Parish, the oversight whereof was the Presbyters work; they had Abbeys and other religious houses, but these were however regular amongst themselves, yet irregular in regard of Church-goverment, whereof I treat.   

CHAP. XIII. Of the manner of the Prelate's government of the Saxon Church.  
HAving discoursed of the persons and precincts, it now befalls 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 public Council, as well in the making as executing of laws already made; This course was learned from Antiquity, 
Malmesb. gest. pontiff. lib. 3. fo. 263.  and enforced upon them by a Roman constitution, in the case that concerned Archbishop 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 Counsels, and are either Diocessan or Provincial, or Nationall, and these either particular or general. 
Baronus An. 930.  The general consisted of all the Bishops and Clergy; and such was the Synod under Archbishop Dunstan called. The Nationall Synods were diversely 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 ordered that a Synod should be called in Saxony (viz England) Sacrosancta authoritate & nostra Synodali unitate, 
Malmesb. gest. pontiff. lib. 3. p 163. 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 Counsels, and needless to instance amongst so many particulars. The Provincial Synods were sometimes convocated by the King, and sometimes by the Archbishop, 
Concil. Brit. p. 191, 310, & 318.  and sometimes jointly. The Diocessan were called by the Bishop. In the Nationall and Provincial sometimes Kings moderated alone, sometimes the Archbishop alone, and sometimes they joined together. 
Ibid. 316, 318, 387.  The Assistants were others 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, the Archbishop was nevertheless precedent; 
Concil. Brit. 245, 327, 387.  as it befell 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 Archbishop was precedent. Concerning all which it may be in the sum well conceived, that the penning of the Counsels aforesaid, either the Clergy (being the penmen) 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 thereto.  
The executing of Laws was for the most part left to the Diocesan Synods; yet when the cases concerned great men, the more general Counsels had the cognisance, and therein proceeded strictly sparing no persons of what degree soever; Examples we find hereof, 
M Westm. An. 955, 958. Concil. Brit. 479.  amongst others, of one incestuous Lord, and two delinquent Kings, Edwy and Edgar. Nay they spared not the whole Kingdom; for in the quarrel between Cenulphus the King and Archbishop Wilfrid the whole Kingdom was under interdict for six year's space; and no Baptism administered all that time. 
Ibid. 332.  Nor were they very nice in meddling with matters beyond their Sphere, even with matters of property; for at a provincial Council (for so it's called) they bore all down before them, even the King himself, as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham. 
Ibid. 319, 332. 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 only 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 Dioceses. The work therein was to preach the word as a preparative; then to visit & inquire of the manners of the Clergy in the worship of God, 
Mag. cent. 8. cap 9  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 Nationall 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: 
Heresy. An. 446.  Their work consisted in the reforming and settling matters of doctrine, and practice. The first was the most ancient, and which first occasioned the use of Synods. In this Island the Pelagian Heresy 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 error and heresy, 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 error jointly with the first teachers. And therefore it's not without reason that in that 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 
Blasphemy.  was questionless under Church-censure, but I find no footsteps of any particular Law against it: yet in Scotland a Law was made to punish it with cutting out the tongue of the delinquent: 
Concil. Brit. p. 341. An. 840.  but it may be feared that neither the Saxons nor their Roman teachers were so zealous for the honour of God's 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 Apostasy was an early sin, and soon provided against; 
Apostasy. An. 314. Concil. Brit. 41. Ibid. 376.  the Church-censure was allowed of in Britain before the Saxons Church had any breath: afterward it was punished by fine and imprisonment, by a law made by Alfred, 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 Churchmen who were the leaders therein; 
Canon. Apost. cap. 10.  a foreign Canon was made to enforce that duty long before; but it would not down with the rude Saxons: they, or the greater sort of them were content to come to Church only to pray and hear the word, and so went away; this is noted by that ancient writer in nature of an imputation, 
Bed hist. lib. 3. cap. 26.  as if somewhat else was to be done which they neglected; this somewhat was the mass which in those days was wont to be acted after the Sermon ended: 
Mag. Cent. 7. cap. 6.  and its probable that if the Nobles were so ill trained up, the inferior 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 as there was either little need of Law to retain them, 
Concil. Brit. p. 306.  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 showed themselves the true seed of their ancestors in Germany, of whom it's observed that they endured not Images, 
Tacit. Mor. Germ.  but worshipped a Deity which they saw sola reverentia.  
Sorcery and Witchcraft they had in abomination: yet it was a sin always in a mist, and hard to be discerned but by the quicksighted Clergy; and therefore it was left to their censure, 
Concil. Brit. 246. An. 745.  as a sin against the worship of God. This Ethebald the Mercian King first endowed them with; and they alone exercised the cognisance thereof till alfred's time, who inflicted thereupon the penalty of banishment: 
Ibid. 377.  but if any were killed by enchantment, the delinquent suffered death by a Law made by Aethelstan. 
Ibid. 403. An. 928.  And thus by degrees became one and the same crime punishable in 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 Kings grant to them of power to take testimonies upon oath; 
Ll. Sax. fo. 4.  as supposing that the reverence that men might bear to their persons and functions would the rather over-aw their tongues in witnessing; that they would not dare to falsify, lest these knowing men should espy it, and forthwith give them their doom. But no positive Law allowed them that power of sentence till Aethelstans' law gave it, 
An. 928.  and upon conviction by the same Law distested the delinquents oath for ever.  
Sacrilege 
Sacrilege.  comes in the next place, being a particular crime merely of the Clergy men's exemption and naming; for before they baptised it, you might have well enough called it theft, oppression, or extortion. This crime the Prelates held under their cognisance by virtue of that general maxim, 
Concil. Brit. p. 127. An. 610. Ibid. 265.  that all wrong done to the Church must be judged by the Church. The first time that I can observe they challenged this power, was by Egbert Archbishop of 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 thereof. All former crimes were in their first act destructive to the Church, but this advantageous; 
Concil. Brit. 263.  and therefore though the Canons roar loud, yet the execution is not mortal, because it's bend 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, then to feed flocks.  
And yet the theme of marriage was the best dish in all their entertainment: 
Matrimonial causes.  they had the whole common place thereof 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 repose 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 Prelacy got into the saddle, or the Clergy had the power of Judicature: And whereas Lucius taxed Vrbicius the Magistrate for punishing Ptolemy who was guilty of no crime worthy of his cognisance in that kind; amongst other crimes enumerated by him, whereof Ptolemy was not guilty, he nameth the crimes against the seventh Commandment, intimating thereby a power in the Judge to have cognisance of those crimes as well as others. But the Prelacy beginning to mount, nibbled at it in the second Century, but more clearly 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 only a judiciary power in determining all doubts and controversies concerning the same; but challenged an efficienciary power in the marriage-making. This garland Austin brought over with him, and crowned the Saxon Clergy therewith, 
Beda. hist. l. 1. cap. 27.  as may appear by his Queres to Pope Gregory; and thus the Saxons that formerly wedded themselves, became hereafter wedded by the Clergy; yet the civil Magistrate retained a supreme legislative power concerning it, as the joint 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, and in the time of Edmond their King were enacted Laws or rules concerning marriage, 
Concil. Brit. 219. Concil. Brit. p. 427. An. 944.  and so unto the Lay power was the Ecclesiastical adjoined in this work.  
The Clergy having gained the principal, with more ease obtained the appurtenances; such as are Bastardy, Adultery, Fornication, and Incest. There was some doubt concerning Bastardy, 
Bastardy.  because it trenched fare 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 cogisance of Incest; 
Incest. Concil. Brit. p. 392. An. 905.  although nevertheless the civil Magistrate retained also the cognisance thereof, so far as concerned the penalty of the temporal Law. Adultery and Fornication they held without control, yet in the same manner as the former; 
Adultery. Fornication. Concil. Brit. p. 558.  for the civil Magistrate had cognisance thereof, so far as touched the temporal penalty: And to give them as much as can be allowed, its probable that in all or most of the cases foregoing they had the honour to advise in determining of the crime, and declaring the Law, or defining the matter; for in those ignorant times it could not be expected from any other.  
But how the cognisance of Tithes crept under their wing, 
Tithes.  might be much more wondered at, for that it was originally from the grant of the people; nor can a better ground be found by me then this, that it was a matter of late original; for till the seventh Century the times were troublesome, and no settled maintenance could be expected for the Ministry, where men were not in some certainty of their daily bread. And as it will hardly be demonstrated that this title was ever in any positive Nationall Law before the time of Charlemagne, in whose time by a Synod of Clergy and Laity it was decreed that Tithes should be gathered by selected persons, to pay the Bishops and Presbyters: 
Synod Durien. cap. 7. An. 785. Rabban. epist. ad Hadubrand.  So neither can I find any Saxon Nationall 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) for the space of well nigh a hundred years before. But Alfred made a Nationall Law under a penalty to enforce this duty, 
Concil. Brit. p. 377  which the Canon could not wring from the Saxons, 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 cognisance 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 policy, which might have put a period to time itself; but (to speak sine ira & study) 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 gin 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 temporise, and to hold both these their strings to their bow: but feeling themselves somewhat underpropped by the consciences of the ignorant people, they soon grew wondrous brave, even to the jealousy of Princes; which also was known so notoriously, that the public Synods rang that the Prelates loved not Princes, 
Concil. Brit. p. 254. An. 747.  but emulated them, and envied their greatness, and pursued them with detraction. 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 as he would always go on foot to preach the Word; 
Malmesb. gest. pontiff. lib. 3. An. 680.  but by that time he was warm in his Archbishop's 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 than 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 Monks, Nuns, and other Clerks; 
Boniface epist. ad Cutbertum. An. 745.  Malmsbury speaks sufficiently of their luxury, drunkenness, quarrelling and fight: Others witness thereto, and tell us that the Clergy seldom read the Scripture, and did never preach; and were so grossly ignorant, that Alfred the King being a diligent translator of Latin Writers into the Saxon tongue, rendereth this reason, because they would be very useful to some of his Bishops that understood not the Latin tongue. 
Concil. Brit. p. 379.  Nor were the Presbyters of another die; for that King bewailing their ignorance, in his Letter to Wolfegus, saith, that those which were the 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) rememember 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 plaster, that those of the Clergy that could not say Domine miserere in Latin, 
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 Clergy to rest upon their works, or title of Divine right; Their great pomp, sacred places, and favour of Kings commended them to the admiration, 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 Prelacy maturely considered the nature of the Saxon government, so much depending upon the people, they might have laid a more sure foundation and attained their ends with much more ease and honour. I commend nor the base way of popularity by principles of flattery; but that honourable service of truth and virtue 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, then for direction.  
The foundation thus unhappily 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 espy their ambition, nor so base spirited as to live in slavery after conviction: This error was espied I confess, but it was too late; and though they reform it, yet it was after four hundred year's labour, and in the mean time by the contentions of the Clergy amongst themselves, Kings had first learned so much of their Supremacy, and the Laity so much of their liberty, as they began to plead with the Clergy, and had brought the matter to issue, before the Synod could rid themselves of these Lay Spectators, or rather overseers of their ways and actions. A second error, was the yoking of the Bishop's power under that of the Synods. For they had little or no power by the Canon that was not under their control, neither in admission or deprivation of Presbyters or others, determining of any cause, 
Concil. Brit. 260, 263.  nor passing sentence of excommunication: and this could not but much hinder the hasty growth of Antichrists power in this Kingdom; nor could it ever be completed so long as the Synods had the chief power. Nevertheless the enthralled spirits of the Clergy, and terror of the Papal thunderbolt, in continuance of time surmounted this difficulty, and Synods became so tame 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 complete by time and observation.   

CHAP. XVI. Of the Saxon Commonweal, and the government thereof; and first of the King.  
HAving already treated of the Saxon Church, in order I am now come to the Republic, 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 freemen, the manumitted persons, and the bondmen. Under the Nobility, and from them, arose one that was called a King, of whom I shall speak a part: 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 itself, the executive power of the Law rested much in the Nobility: but in times of war, and in public distractions they chose a General, and all swore obedience unto him during the war; 
Witikum. gest. Saxon. lib. 1.  it being finished, the General laid down his command, 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 then 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 clothed with Majesty, like some bitter Pill covered with Gold, to make the service better tasted. Nor was the place more desirable, if duly considered. For first, his Title rested upon the good opinion of the Freemen; and it seemeth to be one of the best Gems of the Crown, for that he was thereby declared to be most worthy of the love and service of the people. Yet was the ground of their election so uncertain, as a man might imagine that sometimes there appeared more of the will then of the judgement in it; that it might be said to be the more free; for they neither excluded women nor children further than present occasions lead them. The Westsaxons deposed Seburg their Queen because they would not fight under a woman; 
M. Westm. An. 672. M. Westm. An. 912, 919. Tacit. Cragius.  but the Mercians obeyed Elfled their Queen, and under her fought valiantly with good success against the Danes; imitating the custom of the Sitones or Norwegians in Germany; as they might borrow it from the Lacedæmonians. 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 Kenelm 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 Counsels of the Kingdom, procured a constitution to back them in the election of King's Legitime, etc. 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, 
Mag. cent. 8. cap. 9 An. 747.  and confirmed by great Offa: The rule of their election was the same with that in Germany, viz. to elect the chiefest out of the chiefest family, that is, 
Tacitus.  the chiefest for worth, not by descent; yet the honour they bore to their brave Kings who had deserved well, made some to honour their posterity, and to choose their eldest after their decease, and so in time Crowns were taken up by Custom, and election often times 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, which the Historian saith was praecipuum Sacramentum; 
Tacitus.  and the Prince to the people to be no other than the influence of the Law suitable to that saying of Aethelstan the Saxon King, 
Concil. Brit. p 397.  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. King's furthermore bound themselves (at their entrance into the Throne) hereunto by an oath; as it's noted of Canutus, unto whom after Aetheldred was dead, the Bishops, Abbats, Dukes, 
Miror cap. 1. sect. 2.  and other Nobles came and elected him to be their King, and swore fealty unto him; and he again swore to them that Secundum Deum & secundum seculum etc. viz. according to the Laws of God and of the Nation he would be a faithful Lord to them. 
Wigortn. An. 1016.  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 whiles he was their Captain because it much concerned the good of the Army, and without whom all must scatter, and bring all to ruin; 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 entered 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 swore to their King, was not so absolutely determined upon their persons, otherwise then in order to the public 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 brothers, 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 public safety, and the public 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 then as servants of State in sending them as Ambassadors and Captains, 
Tacitus.  as if they claimed more interest in him then he in them: and the Historian saith expressly, 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 privileged by Sanctuary: for by the growth of Antichrist, not only the Clergy, but even their tenants and retainers were exempt from reach of Kings, even by their own concession allowed of a Law that cut the throat of their indefined prerogative, 
Ll. Sax. Ed. cap. 17.  viz. That if the King defend not his people, and especially Churchmen from injury, nec nomen Regis in eo constabit, verum nomen Regis perdit. Which Law however it might pass for currant Divinity in those days, yet its strange it should get into a public act of State. Nor was this a dead word, 
M. Westm. An. 756, 758. Wigorn. An. 755.  for the people had formerly a trick of deposing their Kings (when they saw him peep above the ordinary reach) and this was an easy work for them to do, where ever neighbouring Princes of their own Nation watched for the windfalls of Crowns: This made the Monarchical Crown in this Land to walk circuit into all parts of the Country to find heads fit to wear itself until the Norman times.  
Thirdly, the Saxons had so hammered their Kings in their elections, and made him so properly their own, as they claimed an interest not 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 Manor of Malings in Sussex to Christchurch in Canterbury; and because the Lords consented not thereto, 
Concil. Brit. 340.  it was revoked, and King Egbert afterwards made a new grant by advice of the Lords; which shows 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 to their Majesty; their power was double, one as a Captain, other 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 whole spoil left to their ordering by permission of the army, 
Tacitus.  Exigunt Principis liberalitate illum Bellatorem equum, illam cruentam & victricem frameam: and they were not wont in such cases to be close handed (per bella raptus munificentiae materia) the 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 Cattles; and these were distributed as spoils amongst the Saxon soldiers by their Generals, and this redounded to the maintenance of the State and port of the great men, who were wont to be honoured non stipendiis sed muneribus, 
Tacitus.  and the people used ultro & viritum conferre principibus vel armentorum vel frugum aliquid; but now upon the distribution of conquered Towns, Houses, Lands, and Cattles 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. 19.49. 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 settled 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, 
Miror. 101, 298 Ll. Edw. cap. 14  and other privileges, which being originally in the kings were by them granted, and made Royalties in the hands of subjects as at this day.  
To the increase of Majesty and maintenance there was an 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 unfethered Arrow gadded not at random. It's true the Church men or Prelates checked them often, but could never give them the mate. For peace sake Kings many times yielded much; yet would no King of Saxon principles allow of any Canon that extolled the Clergies authority above that of Kings: and though the placing and displacing of Bishops seemed to be all 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, 
Malmesb. gest. pontiff lib. 3. gest. Reg. lib. 1. cap 4. M. Paris An. 1095,  Cenulphus in restoring Polydorus, Edfrid in deposing Wilfrid, and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion; and for their own safety sake the 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 politicly 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 burden, till Pope Nicolas the seconds time, who by the like trick commended all to the Crown, as from the Papal benediction. For Edward the Confessor 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 only granted the King's desire, but also discharged that Abbey from ordinary jurisdiction, made it a peculiar subject only to the King's visitation, and concluded his Bull with this horn. Vobis vero & posteris vestris regibus committimus advocationem & tuitionem ejusdem loci & omnium totius Angliae Ecclesiarum, 
Concil. Brit. p 634. An. 1066.  & vice nostra, cum concilio Episcoporum & Abbatum constituatis ubique quae justa sunt. How the King took the conclusion I find not, but he could never make better use than by way of estoppel unless he meaned to sacrifice his own right as a thankoffering 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, 
Ll. Canut. cap. 67.  or by the Prince's fair compliance when complaint was made, and so the Law was saved. And thus upon all the premises I shall conclude that a Saxon King was no other 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 ennobled 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 achievements; 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, 
Ll. Edw. cap. 35. Nitard. lib. 4.  and the bravest spirits though wise have not been ever honoured with good success; these were called Heretochii. Nevertheless all these names or titles were used promiscuously in following times, and all called Nobiles; but both that and Deuces, Satrapae, and Comites were all of the Roman Dialect, as the former were of the Saxon. Time also brought others into this Honourable band, viz. The great Officers of the King's household, and their attests are found amongst the King's charters, amongst the Nobles; And that much advanced the price of Kings; for he that is worthy to be not only Lord above Nobles, but master of some, may by a little courtesy prevail over all. This starry Heaven had several Orbs: 
Tacitus.  some so high, as in common esteem they were next the Imperial Heaven, having a tincture of Royal blood, and at the next door to the Throne; 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 Commonweal was exercised either collectively or apart and severally. In their meetings they ordered the smaller emergencies of the public in convocating and directing the people. De minoribus rebus consultant principes. 
Tacitus.  These minora are such as are subservient to the majora and pro hic & nunc require sudden order touching any particular part or member of the Commonwealth. At other times they visited their several Territories or circuits, hearing and determining matters of controversy, and executing judgement according to the known Laws. Principes jura per pagos vicosque reddunt. Yet they had comites of the Country joined with them, 
Tacitus.  whereof afterward. This was their course in Germane Saxony; 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 its 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 then we ought. I speak not against due, but undue obedience; for had the Saxon Lords remembered themselves, and the true nature of the authority of their King, they needed not to be amazed at their check, nor to give way to their passion, 
Concil. Brit. p. 333.  as they did many times, and advised others to do the like. Nor had Kings by degrees become beyond control and uncapable to be advised. This error 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, 
M. Westm. An. 854.  as in that case of Aethelwolfe and his Queen amongst others may appear: but that was like some enterprises that own more to extremity of occasion then to the courage of the undertaker.   

CHAP. XVIII. Of the Freemen amongst the Saxons.  
THe next and most considerable degree of all the people, is that of the Free men called anciently Frilingi or free born, or such as are borne free from all yoke of arbitrary power, and from all Law of compulsion other then what is made by his voluntary consent; for all free men have votes in the making and executing of the general Laws of the Kingdom. In the first they differed from the Gauls, of whom its noted, that the Commons are never called to council, 
Caes. Com. lib 6.  nor are much better than servants. In the second they differ from many free people and are a degree more excellent being adjoined to the Lords in judicature, both by advice and power, consilium & authoritas adsunt; 
Tacitus.  and therefore those that were elected to that work were called Comites ex plebe, and made one rank of free men for wisdom superior to the rest: Another degree of these were beholding to their riches, and were called Custodes Pagani an honourable title belonging to military service; 
Limb. in 4. fo. 71  and these were such as had obtained an estate of such value as that their ordinary arms were a Helmet, a Coat of Mail, and a guilt Sword: The rest of the free men 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 Gentlemen had.   

CHAP. XIX. Of the villainies amongst the Saxons.  
THe most inferior rank amongst the Saxons were those that of latter times were called villains; But those also anciently divided into two degrees, the chiefer of which were called Free-lazzi. These were such as had been slaves, but had purchased their freedom by desert; and though they had escaped the depth of bondage, yet attained they not to the full pitch of free men; for the Lord might acquit his own title of bondage, but no man could be made free without the act of the whole body. 
Tacitus.  And therefore the Historian saith, that they are not multum supra servos, or scarce not servants. They are seldom of account in any family, never in any City. But in Kingdoms sometimes advanced above the free men, yea above Nobles. Those are now adays amongst the number and rank of such as are called copy holder's, who have the privilege of protection from the Laws, but no privilege of vote in the making of Laws.  
The most inferior 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 maintaintd a kind of generosity in their minds, that they did many brave exploits, and many times not only 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 God's people and the King's subjects. And thus much of the several degrees of men amongst the Saxons, being the materials of their Commonweal; 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 Free men; afterwards, 
Tacitus.  when they assumed the title of a Kingdom the King was a member thereof, and generally precedent 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 Precedent in such an assembly: as it was in the Council at Clano or Cleve in Wiltshire, when the great case between the Monks and married Priests was concluded; 
Malmesb. gest. Reg. lib. 2. cap. 9 Lib. 5. An. 978.  the King was absent, as the story saith, because of his minority, and yet if writers say true, he was then in the sixteenth year of his age. The Lords were also nevertheless in the same condition of privilege as formerly, and though it appeareth that the Kings had gotten the privilege of summoning the grand meeting in his own name, yet it was by advice of the great men, and being met their votes were no other in value then as formerly; for all their Laws were ex consilio sapientum, and for aught can appear out of antiquity the vote of the meanest continued as good as of the greatest, 
Tacitus.  arbitrium est penes piebem. And thus the Micklemote or Wittagenmote of the Saxons in England continued in the King, Lords, and Free men by the space of one hundred and fifty years, and in some parts of England nigh two hundred years before ever the Roman Bishops foot entered, or the Roman Clergy crept into the Counsels 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 entered as Sapientes, not as Prelati, or Church-governors'; for than they had holden the same power in Church-matters agitated in the Wittagenmot that they had usurped in their Synods which they held only for Church-visitation, which they could never have because the Sapientes regni had their Votes therein as freely as they. Nor could the Prelates by any Law entitle themselves to such power or privilege, so contrary to the privilege of the Wtttagenmote. For though it be true that the Germane Priests had a liberty to be present in these grand assemblies, and to have some presidency therein, as to command silence, etc. yet it's no 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 Elisha. They might, I grant, plead the title from Kings; but it must be granted also that Kings as yet had no more power over the Church then in the 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 Wittagenmot had the only cognisance, 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 complete; and though it be true that no monument of story speaks of this grand meeting from their being in Germany, until after the coming of Austin; yet when as the Saxon Histories than find them in the same condition that the Germane story leaves them, it's very probable that in the interval they continued their wont 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 Augustine's arrival Aethelbert calls a Common-council tam cleri quam populi. 
Concil. Brit. 126. Ll. Sax. Lamb. cantab. fo. 1. Ibid. fo. 22. Ibid. fo. 53.  Ina after him made Laws suasu & instituto Episcoporum omnium senatorum & natu majorum sapientum populi; in magna servorum Dei frequentia. Alfred after him reform the former Laws consulto sapientum. After him Aethelsian called a Council, in which was the Archbishop, and with him the Optimates & sapientes frequentissimi besides others, whereof I shall treat now that I come to the matters handled in this Court.  
The matters in agitation in the Wittagenmot generally were all both of public and private concernment. That which concerned the public were such as regarded removal of inconveniences, such as are laws for leagues and affinity with other Nations for preventing of war; and thus became the Saxons and Britons united, 
Concil. Brit. p. 219. Ll. Lamb. Cantabr. fo. 36.  and the mortal feud between those two Nations laid aside, and they made one; and the Saxons and Danes reconciled by a covenant agreed unto, and sworn between both Nations. The like also may be said of their making of war of defence against foreign invasion. Matters of public and general charge also were debated and concluded in that assembly, as the payment of Tithes, 
Ll. Edw. Lamb. Cam. fo. 139.  it's said they were granted Rege Baronibus & populo. Such also as concerned the Church; for so Edwin the King of Northumberland upon his marriage with a Christian Lady, being importuned to renounce his Paganism, answered he would so do, 
Antiq. Brit. p. 51.  if that his Queen's Religion should be accounted more holy and honourable to God by the wise men and Princes of his Kingdom. And all the Church Laws in the Saxons time were made in the Miklemote. Monasteries were by their general consent dedicated, 
Concil. Brit. 127. Ibid. 321.  & their possessions confirmed. The City of Canterbury made the Metropolitan; matters also of private regard were there proceeded upon, as not only 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 justicia sit tractatus, seu quis injuste sit spoliatus. The name of which Council called Synodall 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 Wittagenmot, unless merely in the first occasion of the summons. And if there be any credit to be allowed to that book called, 
Cap. 1. Sec. 3.  The Mirror of Justices, it tells us that this grand assembly is to confer of the government of God's 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, 
Sec. 2.  Queen, or their children; for that the King may not by himself or Justices determine causes wherein himself is actor; 
Cap. 4. Sec. 11.  and to sum up all, it seemeth a Court made to rise and stoop according to occasion.  
The manner of debate was concluded by vote, and the sum taken in the gross by noise; 
Tacitus. Plut. Lycurg. Thucyd. lib. 1. de Lacedem.  like to the Lacedæmonians, who determined what was propounded clamore non calculis; yet when the noise was doubtful, they took the votes severally. The meeting of the Saxons at this assembly in the first times was certain, 
Tacitus.  viz. at the new and full Moon. But Religion changing, other things changed these times to the Feasts of Easter, Pentecost, and the Nativity; at which times they used to present themselves before the King at his Court, for the honour of his person, and to consult and provide for the affairs of his Kingdom; and at such times Kings used to make show of themselves in their greatest pomp, Crowned with their Royal Crown. This Custom continued till the times of Henry the second, 
An. 1158.  who at Worcester upon the day of the Nativity offered his Crown upon the Altar, and so the ceremony ceased.  
This grand Assembly thus constituted was holden sacred; and all the members, or that had occasion therein, were under the public faith both in going and coming, unless the party were fur probatus. If a member were wronged, the delinquent paid double damages, and fine to the King, by a Law made by Aethelbert above a thousand years ago. 
Concil. Brit. p. 127. Ll. Canut. p. 2. cap. 79. Ll. Edw. cap. 35  This privilege of safe pass being thus ancient and fundamental, and not by any law taken away, resteth still in force. But how fare it belongeth to such as are no members, and have affairs nevertheless depending on that Court, I am not able to determine; yet it seemeth that privilege 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 Wittagenmot, 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 precedents run in magna servorum Dei frequentia, as that of Ina: 
Ll. Sax. Lamb. p. 1. Concil. Brit. 219. Ingulfus.  common consilium seniorum & populorum totius regni: another Council by him holden. The council of Winton, 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 control the vote of the wise men, I find not; fremitu aspernabantur its 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 supreme judicature should rest in the Wittagenmot, 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 Anthrophagi 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 only of the Lords, for direction in emergent cases, concerning the government and good of the Commonweal; and for the promoting of administration of justice: these the Historian calls Minora, because they were to serve only 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 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 Prelate's ambition swelled, so as this Council might seem to rule the Church alone in those days; when as few motions that any way concerned Churchmen, but were resolved into the Prelatical cognisance, as the minora Ecclesiae: and thus under the colour of the minora Ecclesiae, and the minora Reipublicae, this mixed Council of Lords came by degrees to intermeddle too fare in the magnalia Regni. 
Mag. cent. 8. cap. 9 An. 712. Concil. Brit. p. 189. An. 694.  For by this means the worshipping of Images, and the mass was obtruded upon the Saxons by the Roman Bishop and his Legate, and the Archbishop of Canterbury; 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 Churchmen shall be free from all Lay service and taxes. And in one sum they did any thing that bond not the whole body of the Free men. 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 Sceptre in the hand of a righteous King; but contrarily missing their way they became a Sword in the King's hand against the subjects, a snare to the Kingdom, and had not the Wittagenmot in their meeting allayed those distempers, the Saxon government had been little other than a Commonweal reversed.   

CHAP. XXII. Of the manner of the Saxon Government in time of war.  
AS the condition of States or Kingdoms are diversely considered in war and peace, so also must their government be: for however war in itself be but a feverish distemper in a Commonweal, 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 then from the abundance of humours. Nor did the temper of the Saxon Commonweal ever shine more than in war, whiles it set a law upon that which ordinarily is master of all misrule and confusion, and so fought by rule rather than by passion. Their chief in the first times was chosen by the Freemen in the field, 
Tacitus. Ll. Edw. cap. 35  either at the Wittagenmot or the Folkmot, 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 Deuce; the latter whereof turned to a bare Title in the conclusion; but the former maintained its own honour, so long as the name lasted. After his election all swore to be at his Order, and not to forsake him: this was a trick of embased times; 
Tacitus.  for though the Lacedaemonian Law was positive, that none should fly 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 could not be (drawn into the field) holden in rank by oaths or honour; and this occasioned that Law of Ina the Saxon King that in such case a Country Gentleman should be fined 120 shillings if he were landed, 
Ll. Sax. Lamb. Cantab. 10.  but if otherwise, 60 shillings, and the Yeoman 30 shillings, and afterwards the penalty was increased to the forfeiture of all the estate of the delinquent. 
Concil. Brit. p. 528. 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, 
Tacitus:  and rendered their encounters mortal, 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 free men; and though many were bound by tenure to follow their Lords to the wars, and many were volunteers, yet it seems all were bound upon call under peril of fine, and were bound to keep Arms for the preservation of the Kingdom, 
Ll. Edw. cap. 35.  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. They were strict in their discipline, 
Ll. Canut. cap. 58.  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-affaires, may serve to let us know that the Law-Martiall, and that of the Sea were branches of the positive Laws of the kingdom, settled by the general vote in the Wittagenmot, 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 governments; they likewise what they conquered 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 public 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 situation of the people, as North or South folk, East or South Sex or Saxons. This division by the names seems to be of Saxon original, and though by the testimony of Ingulfus and other writers, 
Seld. Tit. Hon.  it might seem to be done by Alfred; yet it will appear to be more ancient, if the reader mind the grant of Peter pence made by King Offa, wherein is recorded the several Dioceses 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 grant was more ancient than alfred's time by the space of 80 years.  
Each of these Shires or Counties had their two chief Governors 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 levy 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 King's 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 entitled to their honour by the people's favour.  

Coroners.  The Coroner though in original later, was nevertheless very ancient: he was the more servant or Officer to the King, of the two. His work was to inquire upon view of manslaughter, and by indictment of all felonies as done contra coronam, which formerly were only contra pacem, and triable only by appeal. 
Miror cap. 1. Sec. 13.  As also he was to inquire of all escheates 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 alfred's 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 as the Sheriff was, 
Fits N. Br. 163, 164.  and from amongst the men of chiefest rank in the County, and sworn in their presence, but the King's Writ lead the work.   

CHAP. XXIV. Of the County Court, and the Sheriffs Torn.  
THe government of the County in times of peace consisted much in the administration of justice, which was done in the public meetings of the Freeholders: & 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 Freemen in one place was called the Folkmote by the Saxons (saving the judgement of the honourable reporter) Coke instit. 2. p. 69. and of latter times the County court: the work wherein was partly for consultation & 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, etc. 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 then directory or declaratory; for the Freemen were Judges of the fact, 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 to join with the others in the hearing and determining of such particular eases. 
Miror cap. 5. Sec. 1.  But in case of injustice or error the party grieved had liberty of appeal to the King's Justice. Nor did the Common pleas originally commence in the County court, 
Ll. Canut. Ll. Edgar.  unless the parties dwelled 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 preeminence. 
Concil. Brit. p. 197. tit. 22.  In those ancient times this County court was to be holden but twice a year by the constitution of King Edgar; but upon urgent emergencies oftener, and that either by the King's especial Writ, 
Ll. Edw. cap. 35  or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels. 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 public inconvenience; and to do their fealty to the King before the Bishop and Sheriff upon oath; and in the work of administering justice, 
Ll. Edw. cap. 4.  causes concerning the Church must have the precedency; so as yet the Canon law had not gotten footing in England.  
The other Court wherein the Sheriff had the directory was in the meeting of the free men in several parts of the County; and this was anciently, 
Sheriffs Torn.  and now is called the Sheriffs Torn; which simply considered is but a Hundred Court, 
Miror cap. 1. Sec. 16.  or the Sheriffs Torn to keep the Hundred Court. It was ordered to be kept twice every year, viz. at the Lady day and Michaelmas, 
Ll. Edgar cap. 5 Ll. Edw. cap. 35  or soon after: unto this Court all the Freeholders of the Hundred repaired, and there they, the Bishop and Sheriff executed the same power and work for kind that they did in the County Court. 
Ll. Canut. p. 2. cap. 17.  In this Court all the suits in the Hundred court depending had their determination, and others had their commencement and proceed as well the pleas of the Crown as others. Some have conceived it to be a County court, or superior 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 subdivisions; the first whereof is that of the Hundred now, and also anciently so called, but as ancient (if not more) is the name Pagus; for the Historian tells us that the Germans in the executing of their Laws, 
Tacitus.  a hundred of the free men joined with the chief Lord per pagos vicosque, and in raising of forces one hundred were selected ex singulis pagis, which first were called Centenarii or Hundreders from their number, but used for a title of honour like the Triarii: And as a second hereunto, I shall add that testimony of the Council at Berkhamsted, which speaking of the reduction of suits from the King's Court ad pagi vel loci praepositum, in other places it's rendered to the governor's 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 Hundredere they call Centgraven or Hundred chiefs, 
Cluer. lib. 1. cap. 13.  whether for government in time of peace, or for command in time of war; the later whereof, the word Wapentake, doth not a little favour. Amongst these one was per eminentiam called the Centgrave or Lord of the Hundred, and thereunto elected by the free men of that Hundred, and unto whom they granted a stipend in the nature of a rent, 
Malmesb. Reg. gest. p 54.  called Hundredsettena, together with the government of the same. The division of the County in this manner was done by the free men of the County, who are the sole Judges thereof, if Polydores testimony may be admitted: and it may seem most likely that they ruled their division at the first according to the multitude of the inhabitants: which did occasion the great inequality of the Hundreds at this day. The government of the Hundred rested at the first upon the Lord and the Hundredars; but afterwards by Alfred they were found inconvenient, 
Ll. Alured cap. 4.  because of the multitude, and reduced to the Lord or his 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 mixed Court of common pleas, and Crown pleas: 
Ll. Edw. 35, Ll. Aetheldr. 1. Ll. Aethelst. 20  for the Saxon Laws order that in it there should be done justice to thiefs; and the trial in divers cases in that Court is by ordeale. Their common pleas were cases of a middle nature, 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 as I formerly observed: 
Ll. Aetheldr. cap. 1. Lindenbrog. Ll. Allm. & Saxon.  all Freeholders were bound to present themselves hereat. And no sooner did the defendant appear, but he answered the matter charged against him, and judgement passed before the Court adjourned, except in cases where immediate proof was not to be had; albeit it was holden unreasonable in those days to hold so hasty process: and therefore the Archb. of York prefers the Ecclesiastical or Canonical way before this. Lastly, in their meeting, 
Concil. Brit. p. 273. Tacitus. Glossar. 155.  as well at the Hundred as County Court, they retained their ancient way of 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 with 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 controversy 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 Freeholders in Hundredo, and all free men were Decenners, 
Ll. Canut. c. 19  that is ranked into several ten; each one being pledge for others good abearing, and in case of default to answer it before the judge; and in case of default of appearance his nine pledges should have one and thirty days to bring the delinquent forth to justice. If this failed, than the chief of those Decenners by the votes of that and the neighbour Decennaries, 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, than were they by their own oaths to acquit themselves, and to bind themselves to bring the delinquent to justice as soon as they could, & in the mean time to pay the damage out of the estate of the delinquent: and if that were not sufficient, then out of their own estate; but if the delinquents estate was sufficient, the surplusage thereof remained with the pledges. And lastly, the Master of the family was a pledge for his whole family. 
Ll. Edw. cap. 15 Ll. Canut. c. 28  This was the Law of Decenners, and may seem to be somewhat a rigorous law, not only in case of delinquency, but also for their abode, for none of them might departed from their dwelling without consent of his fellow pledges, 
Ll. Alured cap. 33. Ll. Canut. p. 2. cap. 15.  nor out of the County without allowance of the Sheriff, or other Governor of the same. And if any controversy arose between the pledges, the chief pledge by them chosen, called also the Dean or Headburrough may determine the same; 
Ll. Edw. c 20.  but this held only in matters of lighter consequence.   

CHAP. XXVII. Of Francheses': and first of the Church Franches.  
WE have hitherto trod in the road way of the government of the Commonweal: 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 eithet in regard of the place or person. In the later I intent that of the Churchmen, 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: 
Concil. Brit. p. 258.  for so an Archbishop tells us, that it did teach quomodo Canonici id est regulares Clerici vivere debent; but when it grew to its full charge it gave a louder report, Quicunque aliquid tenuerit vel in fundo Ecclesiae mansionem habuerit extra curiam Ecclesiasticam non placitabit quamvis foris fecerit. 
Ll. Edw. Conf.  And thus as Church ground increased by the blind charity of those times, so long Churchmen multiplied, and the Canon enlarged from the persons of regulers to all Clergymen, 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's no way left to escape the Church fury.   

CHAP. XXVIII. Of the second Franches called the Marches.  
FRanchises of the place were such as were limited within precincts of place, & annexed thereto; and of this sort first were those of the borders, of which those are the most ancient that bordered the Britons, now called the marches of Wales, in which was a peculiar government, so far as concerned administration of justice; for otherwise the subjects each of them submitted themselves to the service of their own Prince. This was therefore a third, different, and mixed government, agreed upon jointly between the Britons and Saxons, who after a long and burdensome war, wherein both peoples were well wearied by degrees became friends, entered traffic 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, & agree in one law, & upon a certain number of Judges elected by common consent, who were to see to the execution of these Laws as joint assessors. From these as I conceive arose those which are now called the Lords marchers, 
Ll. Aetheld. cap. 3.  and were at the first twelve in number, viz. six Saxons and six Britons. It seemeth this form of government was first instituted by Aetheldred, and by way of prescription or 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 twilight between the day and night, until both were brought under one head, and by divine providence settled in a lasting day.   

CHAP. XXIX. Of County Palatines.  
OF the same sort of Francheses' 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 a Province holden of the Imperial Crown: and therefore the King's Writ passed not within this precinct no more then in the Marches. These were occasioned from the courage of the inhabitants that stoutly defended their liberties against the usurping power of those greater Kings that endeavoured to have the Dominion over the whose Heptarchy, and not being easily overcome were admitted into composition of tributaries; and therefore are found very ancient: for Alfred put one of his Judges to death for passing sentence upon a malefactor, for an offence done in a place where the King's Writ passed not: 
Miror: cap. 5. Sec. 1.  and the same author reciting Another example of his justice against another of his Judges for putting one to death without precedent, rendereth the King's reason for that the King and his commissioners ought to determine such cases; excepting those Lords in whose precinct the King's 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. edmond's, 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, so as the delinquent was both inhabitant and taken within the same; this was called Infangtheoff, 
Infangtheoff.  and if upon fresh pursuit made by the right owner or possessor, the delinquent was taken with the prey in his possession, or as the old Dialect is Handhaben Backbearend; 
Ll. Edw. cap. 26  Then was he carried immediately before the Coroner of that liberty, and the Sakeber or party wronged made his proof by witnesses; and thereupon judgement forthwith passed without answer, and execution immediately ensued. Some Liberties had Outfangtheoff, 
Outfangtheoff. Bracton lib. 3. tract. 2. cap. 35. Briton. cap. 15.  that is, the trial and forfeiture of such delinquents, being no inhabitants, and yet taken within the liberty, or inhabitants and not taken within the liberties; but this trial was always by Jury. The antiquity of these Liberties are not obscurely manifested in their names, and more clearly by the Saxon Laws and Acts; 
Ll. Edw. cap. 21  for it's observed of Alfred that he seized a Franches of Infangtheoff, because the Lord of that Franches would not send a fellow (taken within his liberty for a felony committed without the same) to the gaol of the County, 
Miror cap. 5. Sec. 1.  as he ought to have done. Other Liberties there were granted also by charter; a taste whereof may be seen in one grant made by King Edgar to the Monastery of Glastenbury, wherein was granted Sack, Hamsockne, Friderbrece, Forstel, Teme, Flemone, Ferdre, Hundred Setene, Sock, Tholl, Adae, Horda, Bufan Orderan, Bene Orderan, the particular natures of each may be observed in the Glossaries; All of them being allowed to the Crown by the Law, and by the advice of the 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 appendent to Manors; which were Francheses' of smaller circuit being at the first portions of ground granted to some particular persons, and by them subdivided and granted over to particular persons to hold of the Grantors by rents, services, and suit to one Court, all being no other 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 politic. In antiquity it's called Mansum from the mansion house, although it is not of the Essence of a Manor, 
Bracton. fo. 212  nor ought the words of Bracton to be construed according to the literal sense; 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. 
Flera. lib. 4. cap. 15.  The Estate that was granted depended partly on the condition of the Grantee: for some were servi or bondmen, and their Estate was altogether at the will of the Lord, as was also the benefit; but the servants merit, and the Lords benignity concurring with some conscience of Religion, as the light grew more clear, abated the rigour of the tenure into that which we now call Copyhold. Other Estates were made to the Free men, which in the first times were only for years; albeit therein they were not niggardly, for they sticked not at Leases for a hundred years, 
Ingulsus 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 Farms, which word signifieth Victuals: But times ensuing turned the victual into money, and terms of years to terms of life and inheritance, retaining the rents, and those called Quit rents, or the rents of those persons that are acquitted or free. 
Gloss. 158. Ll. Saxon 16, 17. Lamb. Gloss. 348. Ll. Canut. p. 1. cap. 69.  But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a relief: which were not left to the will of the Lord, but was put in certainty, in the very letter of the Law: for according to each man's 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. 
Knight-service.  These concerned either war or peace; the former was afterwards called the service of the Knight or Soldier; the later the service of the Husbandman or Plough. That of the Soldier was the more honourable, and suitable to the old Germane trade; Pigrum & iners videtur sudore acquirere quod possis sanguine parare: 
Tacitus.  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 entitled Milites: and many of the Saxon charters were attested by men bearing that Title; yet the service itself was fare 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 Germane way of calling forth of their Tirones to the war. 
Tacitus.  Of this rank some were more eminent than others; for some bore the single title of Knight, and it seemed served on foot: Others served on horseback, and were called Radknights, or Knights riders, as Bracton noteth; 
Selden. Spicil.  and these I take to be the Vavasours, noted in the conquerors Laws: for that their relief is a Helmet, a Coat of Mail, a Shield, a Spear, and a horse. Now for the maintaining of this service, they had Lands and Tenements called Knights Fees, which bond the owner to that service, into whose hands soever they came, to be done either by the person of the owner or other fit person by him procured, and therefore were discharged from the payment of all taxes and tollage, which was the Law of the Goths of old, 
Co. Litlet. 75. Bureus.  and remains in Sweden at this day. The number of these Fees much increased, so as in the conquerors time they were above sixty thousand, which was a mighty body for a small Island, and brought much honour to the Nation.  
But the profit arose from beneath, 
Soccage tenure.  I mean from the soccage tenure or service of the Plough, which in the first times was performed by those that were unfit for the service of the wars, either being green and young, or decrepet and aged; 
Tacitus.  and sometimes by the women. But after that the Saxon conquest was at a stop, and that no more was to be gotten by blood, men endeavoured to satisfy their desires by sweat, and turned their Swords into Ploughshares; and thus the Husbandry increased exceedingly, and hath proved the best pillar of the Commonweal: the nature of this tenure is fully set out by the Reporter, 
Co. Litlet. fo. 86. Ll. Edw. c. 33. Spiceleg. Ll. Edw. c. 33.  nor can I add thereto more than the Law of the Confessor concerning these men, viz. that no man might trouble them but for their rent, nor any Lord thrust them out of their Farm so long as they do their service; and thus it appeareth that the service became in nature of a condition subsequent begetting an increaser of the Estate, which by continuance wrought an inheritance, and so the Title of Entry was turned wholly into distresses for service not performed; yet the Lord was no loser thereby so long as Heriots, Rents, and Services accrued 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 inquire concerning their payment of rents, and performance of services, which became Courts of constant appointment: of which sort there were two, one for the free men, the other for the bond men; and this brought forth an other service, 
Courtleet.  which we call suit of Court. The Court of Free men was holden from three weeks to three weeks, wherein the free men, 
Miror p. 17. Lind. gloss. Albin. hist. Saxon. p. 72.  as in the Hundred and County were Judges of the fact, and from them named, as at this day Court leete, or the Court of the Liti, or such as are manumitted or free men. In this Court all actions or suits between the free men of the same Manor, and within the same arising, were determined; nor could any Court (no not the Kings) intermeddle with such suits before trial had, but by the Lord's allowance: And upon this privilege 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-bookes. 
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, 
View of Frankpledge.  and had of Kings grants of view of Frankpledge within their several Lordships; and further power of inquiry and punishing of matters of public nuisance, and such as were contra pacem & coronam; which by custom became annexed unto the Court-leete. The nuisances of Copy-holds being done to disherison of the Lord, and not proper for the Court of public inquiry. The Judge of this Courtleet was the Lord, or his Steward, for the directory part; and the Steward was properly Coroner within the Manor to take presentments, and certify them to the Coroner of the County. And thus this Court swallowed up much of the power of the Decenners Court in the very infancy, so as we find no footsteps 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. 5. Sec. 1  and many things done by the chief pledges in the Courts of these Manors, as is to be yet seen in many ancient Court Rolls.  
The other Court which by common right belonged to the Lords of Manors was that of the Copyholders, 
Court Baron.  called or rather included under the name of the Court Baron, which albeit it is called in the ordinarily stile Curia Baronum, yet not so properly as I conceive, 
Co. Instit. cap. 57  and it may be by way of mistake for Baronis: for if it were so properly united formerly to the Court of Free men, as ab excellentiori it always passed under that name; yet when that Court is omitted and slipped out of the way, the Court of Copyholders that remaineth, improperly retaineth the name of that which is gone. This Court at the first was intended only 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; which also caused a Law to be made ut sic de suis hominibus agant quatenus erga Deum reatum non incurrant & Regem non offendant: 
Ll. Edw.  which law could never be intended of the free holder's; 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 King's Writ. And that 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 antique language darkened, 
Selden. Spicil. 184. cap. 33.  yet plainly speak the terra sua & Catallis ejus; and if the ancient Germans were so generous to their bondmen, surely much rather after their coming into this Island in as much as their service was more, and more necessary in agriculture, which could never be performed by the natives, who were not in their own persons conquered although their land was.   

CHAP. XXXIII. Of Townships and their Markets.  
THe next Franchese is that of Towns; this was taken up as a birth of war and nurse of peace; for their ancestors liked not to dwell in crowds, 
Tacitus.  ne pati quidem inter se junctas sedes: it being their trade or pastime to 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 conquerors time were found in England forty five thousand Parishes, and sixty two thousand Villages. Nor was peace less beneficial to them then they careful of it; for by continuance of peace, Husbandry, Manufactures, and Commerce occasioned people to gather to places commodious for habitation in good soil nigh navigable Rivers or Havens, and according to their situation and trade, so they swollen in multitude or decayed, some of whom growing more eminent than others, more care was had of their government and safety; for the later by building of Walls and Castles, and for the former by settling 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. cap. 44. Miror cap. 5. Sec. 1. Markets.  as may appear in the cases of Dorcester, Circeter, and Doncaster, in alfred's time; and herewith they had public markets which served them for their better convenience.  
This privilege of Market was a liberty of public sale and trade in commodities that principally concern the belly, 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 them 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 Eignee right which was recompensed 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 inconvenience herein, viz. that by these less public 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 men's goods by clandestine contracts were lost, and no care had of their recovery; and (which was yet more prejudicial to the public) that the greater Towns appointed for the strength and defence of the Kingdom became ill provided with supply of victual, 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 public edict laid a restraint of Markets in smaller Villages, and more private places; and thus the greater Towns having Markets formerly became more public Markets, not by any new right or privilege 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 public defence. This restraint upon the reasons aforesaid, was made first in the Saxon times as may appear by their Laws, but more clearly declared and confirmed afterwards by the Laws of the Normans, which never gave any new right of Market overt unto those places of public defence, but only did inhibit the same in the smaller Villages and private places. In which respect although the Kings of this Nation in 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 privilege which nature itself cast upon those greater Towns being the very limbs of the Kingdom, without wrong done to common right and the public good: nor abridge them of that power, but that they might still use their liberty at times and places within their precinct, as might best conduce with the benefit of the inhabitants of those places, even as any particular free man may govern his own estate as him liketh best. And thus upon the whole matter it's to be concluded, that the ancient Burroughs of this 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 then on any of the smaller Villages & open Towns; even as every free man possesseth and useth his proper inheritance and estate without particular privilege 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 public administration, had for their better support and safety liberty of Fortification, 
Ll. Edw. cap. 1. Ll. Aethelst. cap. 12. Ll. Aethelst. cap. 13. Gloss.  and power to charge one another with the maintenance of these Fortifications by an imposition called Burghbote, and held their Tenements under a rent to their Lord or King called Burgages, 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 Forrest, being a precinct of ground neither parcel of the County nor the Diocese, nor of the Kingdom, but rather appendent thereunto. This savoured of the old Germane 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 feud 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 Liberties as well as men. But this was, as it were, by compromise; for it had been very hard to have pleased the free men, who had liberty of game within their own ground by common right, 
Ll. Canut. c. 77  and to preserve the King's liberty of Forest coincident therewith, had not the King employed on the one side the power of a Dane that looked somewhat like a Conqueror, 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 only for the King's 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 itself 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 fare of the several Tribes and members of this Commonweal, 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 itself 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 public concernment. Examples hereof are the cases between the Bishop of Winchester and Leoftin in Aetheldreds' time; and between the two Bishops of Winchester and Durham, in 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 King's Writs to remove certain causes from the cognisance 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 rendered 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 & justiciam per concilium procerum regni sui tenturum; 
Ll. Edw. cap. 16.  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 King's Commission to reform errors, punish defaults in the ordinary rural judicatories, 
Miror cap. 5. Sec. 1. & ca 1. Sec. 3.  and to dissolve hard and knotty cases; and these were occasioned at the instance of the party: and Alfred (whose birth this was) sent them forth in way of Association with the Sheriff, Lord of the fee, or other ordinary Magistrate.   

CHAP. XXXVI. Of the proceed in Judicature by Indictment, Appeal, Praesentment, and Action.  
FOr the proceed 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 afterwards 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 public; 
Indictment.  and upon this ground a way was found out to punish the offender by indictment, besides the satisfaction done to the party wronged. The proceed against such delinquents were by attachment of the party, 
Lambert. Ll. Inae. 15.  who thereupon gave pledges for his appearance. If the party could not be found, a fugam fecit was returned, and that was a conviction in Law, and pursuit was made after the party by hue and cry. If he was thereby taken, the ancient way was that of Halifax law; but in later times he was imprisoned, 
Ll. Inae: Lam: fo. 7. Ll. Alured cap. 6. Miror: c. 2. Sec. 24. Ll. Edw. cap. 4. Miror p. 255. Gloss. 335. Miror cap. 5. Sec. 9 & 10. Ll. Edw. cap. 7. Ll. Canut. cap. 45. Miror cap. 2. Sec. 22.  or admitted to bail if the offences were bailable; and if the party bailed made default, or did not abide the trial, his bail suffered as principal: If no bail could be procured, the delinquent was imprisoned till he was legally acquitted; but this imprisonment was only in nature of a restraint. If the delinquent was found upon the hue and cry, and would not yield himself, he was in repute a common enemy, and (as a wolf) any man might kill him; as the Law was also the same in case of Utlary. At the time of trial (if at the King's 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— etc. 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) traitorously; 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, 
Appeal. Miror cap. 2. Sec. 15●.  by witnesses, and twelve men. But if the complaint was at the suit of the party, than the prosecutor sued him upon Appeal, in manner following: I. C. appealeth D. H. here present, for that E father, brother, son, or Uncle (according as the case was) to I.C. being in the peace of God, and of our Sovereign Lord the King in the dwelling house of E. at— etc. 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 by his body, or as a Monk, woman, or Clerk behooveth to prove the same, that is, by Champion; for neither Monk, woman, nor Clerk was by Law to justify 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 only observe the difference between Indictments former and later, and 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 only a publication or affirmation of the fame of a fact done by the party indicted, and wherein not guilty pleaded, served only as in nature of a Quere, to usher in the votes of the free men.  
Concerning the fact secondly the difference between former Indictments from these in these 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 only of a fame, the later of the fact.  

Miror cap. 2. Sec. 23. Presentment.  A third way of bringing controversies unto judgement concerned only such matters as were of less consequence; and these were introduced by way of presentment, in the name or behalf of the King, in nature of positive accuse of one for a crime first laid down generally, and then asserted by a particular fact, in this manner: I say, for our Sovereign Lord the King, that H. here is perjured, and hath broken faith against the King, because whereas H. is or was Chancellor of the King, and was sworn that he would not sell right, or any remedial Writ to any one: yet upon the— day of— etc. 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 only in the degree of crime for which the party delinquent was accused, and in the manner of conclusion of the Presentment, which was without averment.  
The last way of trials concerns such offences that exceed not the nature of trespass done to a man's person or his goods: 
Miror cap. 2. Sec. 24. Action.  and this was by way of Action, and it was to obtain recompense 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 realty, 
Ll. Aetheldr. cap. 20. Ll. Canut. c. 10 Lindenbr. tit. 36.  three Summons went forth in the Hundred court; and if default were made, complaint thereof ensued in the County court, and thence issued forth a distringas; and if the defendant still persisted in declining his appearance, the 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, the Lord of the Hundred, and complainant, because he had offended against all three. But if the party appeared in former times, he answered forthwith, and judgement passed without delay, as hath been said; 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, 
Miror cap. 5. Sec. 1.  that no Essoine should be allowed for above fifteen days: and this was the direction of King Alfred:  
In the answer of the defendant he either traversed the matter in fact, 
Miror cap 3. Sec. 16.  or confessed and justified, or confessed and submitted. The first put the matter to the judgement of the free men; the second to the judgement of the Judge; the third to the discretion of the complainant, whereby the defendant generally found mercy, and in case of trespass rendered less damage. I find no footsteps in those times of Dilatory pleas: or demurrer, or other delays, unless in case of infancy; for the Saxons knew no other age of ability to do or suffer, 
Lindenbr. gloss. Miror cap. 5. Sec. 1.  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, although it may well be thought that it requireth no less maturity to manage the affairs of a married life, then 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 itself, 
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 persuaded 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 jealousy is once entered, there's no place for sparing, be the matter never so untrue: yet I do not find any Law amongst the Saxons to patronise this fashion of conviction, albeit it seemeth it was practised, for Alfred the King punished one of his Judges with death for passing sentence upon an extorted confession by torture before the Coroner; 
Miror cap. 5, Sec. 1. Cragius.  and possibly it might be gained from the Lacedæmonians, 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 preconceit or suspicion: the manner hereof was divers. The thing seemeth to be the birth of the brain of some Churchman who had read of the accursed water. The first mention that I find thereof was at the Council of Ments, 
An. 813. An. 895.  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; 
Ll. Aethelst. Can. 23. An. 928.  after which time it continued in use well nigh three hundred years. A strange monument of God's indulgency 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, 
Isa. 43.2.  etc. and it shown mettle in them that followed the example: but the next age grew dull, and men being weary of such bane touches, the Clergy that cried it up, their successors cried it down, and so devoured their own birth, without any difficulty, other than a bare injunction of a King that had power to command only such as would obey. 
Spicil. Selden.   
But where fame was yet more slight, 
Compurgators.  and springing rather from want of charity and misapprehension then promising circumstances; men were wont to be contented with a voier Dire, or the oath of the party suspected, and the concurrant testimony of other men: the first attesting his own innocency, the other contesting their consciences of the truth of the former testimony; and therefore were, and still are called compurgators: their number was more or less, and of greater or less value, according as the offence or the party suspected was of greater or less concernment. 
Ll. Edm. c. 16.  This manner of trial was of ancient use, and both it and that of Ordeale under the directory of the Clergy; yet this was the ancienter by three hundred years, and first brought into this Nation by the Council at Berghamsted under Bertwald Archbishop of Canterbury. 
An. 647.  And it was performed sometimes more solemnly by solemn receiving of the Eucharist, 
Ll. Canut. cap. 5.  especially if the party suspected was of the sacred Function.  

Battle.  One manner of trial yet remains 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 Clergy; or too weak, as women, maimed persons, and children; or too inscient, as Idiots and Lunatics; or too mean, as villains. And as these were not necessitated to answer in battle, so was no free man compelled to answer them by battle. 
Miror cap. 2. Sec. 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 only upon the single conscience of the Defendant, which oftentimes was rather hardy then innocent. And the continuance of this trial in title even at this day shows 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 partly because its fatal; and partly because both Scripture and experience show, 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 travers of the matter in fact) before the Jurors, 
Inquest.  and their vote 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, or the major part of them. 
Emmius.  But 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 300 years before the conquest. In singulis Centuris, etc. 
An. 675. Ll. Sax. Lamb.  In English thus: In every Century or Hundred let there be a Court, and let twelve ancient free men, 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, that Alfred put one of his Judges to death for passing sentence upon a verdict corruptly obtained, upon the votes of the Jurors, 
Miror cap. 5. Sec. 1.  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, when as the Delinquent had not put himself upon their trial.  
But the Saxons were yet more careful of the credit and life of man, 
Two Juries.  for no man's life or credit rested altogether upon the cast of twelve opinions: but first twelve men inquired of the fame and ground thereof, which if liked rendered the party under the spot of delinquency, and meet to be looked upon as under the suspicion of the Law, who formerly was but under the suspect 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 itself upon those allegata and probata which were before them. The first of these inquiries was before the Coroner, who even in those old days had the view of bloodshed. The second was had before the Judge of life and death: neither of which could legally endamage the party without the other, unless the Judge meaned to answer it with the peril of his own person and estate, as it befell in alfred's time, when as a Judge suffered death for passing sentence upon the Coroners only 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 may note another difference between Appeals and Indictments, 
Miror cap. 2. Sec. 11.  in this, that Appeals were and are the more speedy trials than Indictments, in as much as the former were but one act, the later two.  

Medietas Linguae.  And yet time and experience refined this way of trial into a more excellent condition: For the bloody times of the Saxons first age passing over, and peace arising by degrees, they together with the Britons began to intercomon, and about the Marches become a mixed 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 mixed both of Britons and Saxons, 
Ll. Aetheldr. cap. 3. Lamb.  which was settled by a law made by Aetheldred. Viri sint, etc. In English thus: Let there be twelve men of understanding in the law, six of them English, and six Welsh; and let them deal justice both to English and Welsh. The equity of this law in future ages spread itself into all trials of Foreigners 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 only 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 sat in the most eminent place of the assembly or court, and were coassessors with the Bishop and Sheriff who did serve, but only 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 desidiousnesse 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 free men in this public 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 unto the vote of the inferior rank of men, provided a third way, and by agreement between him and Gunthurne the Dane, settled the law of Peers. 
Ll. Alured.  Si minister regius, etc. If a Lord or Baron be accused of homicide, he shall be acquitted by twelve Lords: but if of inferior rank, 
Concil. Brit. fo. 499.  he shall be acquitted by eleven of his equals and one Lord. Thus God's providence disposed of the pride of men, to be an instrument of its own restraint; for the great men ere they were ware 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 free men, and thereby been destructive to the Fundamental constitution of the government of this Realm, which consisteth in the just and equal participation of these privileges, 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 free men, 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 Common pleas, 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 cognisance of pleas, and writs of Assize, etc. from the times of the Saxons, as in that case of the Abbot of Bury amongst others doth appear. 
26. aff. pl. 24.    

CHAP. XXXIX. Of passing of judgement and execution.  
AFter verdict judgement passed according to the letter of the Law, or known 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 settled by Letter of the Law, and not left to the Judge's discretion. If the crime reached only to shameful penance, such as Pillory or whipping (the last whereof was inflicted only upon bondmen) then might that penance be reduced to a ransom, 
Ll. Inae. Ll. Canut.  according to the grain of the offence assessed in the presence of the Judge by the free men, and entered 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 indammaged, or his friends, if the case so required; 
Ll. Inae cap. 22.  according to the old Germane rule, Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus. This course opened indeed a way for mercy, 
Tacitus.  but through corruption a floodgate to wickedness in the conclusion. Of imprisonment there was little use in the eldest times; afterwards it was more used not only 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 public. 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 offender's 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.  than the moiety of the lands was extended, and so by moities so fare as was possible, salvo centenemento, 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 King's case; for Alfred imprisoned one of his Judges for imprisoning a man in that case. One punishment of death they had in cases of crime, 
Miror cap. 5. Sec. 1.  and that was by hanging or strangling; and where the crime was not so great, sometimes ensued 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 cognisance thereof, so long as the Clergy and Laity had charity enough to join in all public Counsels.   

CHAP. XL. Of the penal laws amongst the Saxons.  
PAssing the Courts and manner of proceed 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 governor's, ages, and peoples. For though the Saxons were in name our first matter, yet not they only; but they having once made the breach open, and entered this Island it became a common sewer to the excrescency of those Eastern peoples of 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 Denisins 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 Commonweal. Nor can any Nation upon earth show 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 settled, yet in the interim these short remembrances left unconsumed by time, I have subjoined, that it may appear their notions were excellent, though somewhat inconstant in their practice.  
Those times were dark, and yet so fare 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 only, and whereof God hath the sole cognisance.  
True it is that the first Commandment containeth much of the same nature; yet somewhat is visible, 
The first Commandment.  and that they bond; for whereas in those times the Devil had such power as he did prevail with some, 
Witchery.  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 unworthy of their society that would communicate with Devils, yet if the delinquent had done any mischief whereby death ensued, the party's punishment was death; 
Ll. Sax. cap: 6.  yet might all be discharged by ransom, and good security for good behaviour for time to come.  
For their worship of God they were no less zealous in maintenance of the manner; 
The second Commandment.  as their forefathers liked not the use of Images or pictures for adoration, neither did they: and although the clergy in other matters led them much, yet in this they were alone for a long time; for although the Roman Church had the use of Images above three hundred years before Augustine's coming, yet could not that custom fasten upon the Saxons for the space of above one hundred years after Augustine's coming, notwithstanding the endeavours of Charlemagne and Pope Constantine by his bastard decree begotten upon the dream of the Bishop of Worcester that saw the Virgin Maries picture brought him in his sleep by herself, and with a command from her that it should be set up in the Church and worshipped: 
Concil. Brit. 218.  I say it could not fasten any constant practice of Idol worship, nor ever wrest a Law from the Wittagenmot 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 Ll. Canut. c. 5  and they enforced the same by a law of their own making, so far as their Clergy, or reverence they bore to Rome would allow.  
It hath been formerly observed that the Saxons took no note of the vice of profane swearing and cursing; 
The third Commandment.  which crime (if it were in use, as it cannot be otherwise conceited but it was) as the times than were must lie upon the Clergymens' 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 only in case of false swearing, till Anselms time. True it is that chrysostom seemeth zealous against all swearing; but that was his personal goodness, which for aught appeareth died with him. And Anselme contending against swearing by the creatures, and idle swearing, renders his grounds in such manner as it may be well conceived that he understood not the main. 
Cent. 11. cap. 4. de lege.   

The fourth Commandment.  I am the rather induced to conceive charitably of those times in regard of their exceeding zeal for the honour of the Lords day; which showeth, that so fare 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 day's devotion, they made the Lords day to begin upon Saturday at three of the clock in the afternoon, and to continue till Monday morning. 
Concil. Brit. 445. 446.  No pastime, no not their beloved sport of hunting, was allowed during all that time: nor no works were to be done, but such as concerned the worship of God; and those laws they bond 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, 
Ibid. 268, 377, 404, 518, 546.  or age only, but of the whole currant 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 compare with them for their devotion.  

The fifth Commandment.  In their conversation with men the Saxons seemed yet more strict, and being a people of a public 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, 
Treason.  and to be punished in the highest degree. 
Tacitus.  Proditores & transfugas arboribus suspendunt. 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 concluded only Felonice, 
Miror cap. 2. Sec. 11.  as may appear in that form of an indictment for an offence of that nature intended and plotted against Edmond the Saxon King: when as for the plotting against alliance, though of common and inferior nature, the Indictment concluded felonice & proditory. 
Miror cap. 2. Sec. 13.  And whereas the penalty in case of treachery against the Country was death, and forfeiture of the whole estate, 
Ll. Edw. cap. 38  both real and personal: in treachery against the King it was only loss of life, and of the personal estate. 
Concil. Aenham 26.  And therefore it may seem that Majesty had not yet arrived at its full 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, 
Manslaughter. Tacitus.  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. fo. 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, and so private revenge became under the power of the Law: which punished death with death, 
Miror cap. 5. Sec. 1. Ll. Alured Sax. preface Lamb.  savouring of such a King as Alfred was who first taught the Scriptures to speak in the dialect of our own Laws; like the Rubric amongst the Canons, bringing therewith both strength and beauty; yet they had degrees of bloodshed, and made a difference in the punishment; for some sprung from sudden passion, but other was forethought and purposed; which last they called Abere murder, 
Glossar. p. 4. Ll. Canut. cap. 93.  or murder by foreplot or treachery; and this was made nullo precio emendabile; and yet towards the times of the Danes devotion grew of so high a die that a Sanctuary could represent any bloodshed more allowable, if not acceptable; under the golden colour of recompense 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 left 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. Stamf. lib. 1. cap. 10. Miror cap. 1. Sec. 13.  I cannot omit: That if a man were found slain, whose parents or friends were unknown, by common intendment he was to be presumed to be a Dane, and then if the delinquent were not taken, nor fled to Sanctuary, nor known where he is, the whole Hundred was amerced for the escape; 
Bracton lib. 3. tract. 1. cap. 15  but if the party slain was known to be of English parents, it was otherwise. This custom lasted long after the Normans time, the Dane being only changed into the Norman, 
Breach of peace. Batteries. Maims. Imprisonments. Alured. praes. Lam. 19  and was called Englishire. Batteries, maims, 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 joining in the fact; for if seven joined, it was a riot, and the fine was then called Flothbote. If the number were five times so many; viz. thirty and five, than 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 profaned; in the second, the Country was more endangered when the strength was abroad, and the Army might be discouraged at the news of the disturbance at home. And therefore the Saxons punished this with death, or fine suitable. 
Ll. Edw. c. 31. Ll. Sax. cap. 36. Ll. Inae cap. 6.  Thirdly, the fine was the greater in case of the excellency of the place, where it was holy ground, or in the presence of great persons, such as the King or Bishop.  

The seventh Commandment.  Adultery amongst the old Germans was holden a crime of a high nature; the penalty of the woman that committed that crime was death. I find not what became of the man; in latter times of the Saxons it grew less penal, 
Baronus Anal. 745. num. 5. Concil. Brit. 558. Ll. Canut. 50. reg. 22.  and more common. By alfred's Law it was finable, and the fine called Legierwit. By Canutus the man was fined or banished, the woman to lose her nose, ears, and her portion. Incest was more penal to the man then Adultery, and yet it touched not his life. 
Incest. Ll. Sax. 48. reg. 19   
Robbery amongst the Lacedæmonians was accounted but a trick of youth, the Athenians thoughts were more severe. The Germans likewise differed in their censures concerning it; 
The eighth Commandment.  the Saxons punish it with death, but the Angles with fine only; yet Ina the King made it mortal, and Canutus followed him therein: 
Lind Ll. Ang. & Sax. Ll. Sax. 4. reg. 3 Miror 262. Burning of woods Burglary. Ll. Edm. cap. 6. Ll. Canut. p. 59 Trespasses.  And Edward the Confessor limited that punishment to thefts of twelve pence in value, or above, burning of woods was fineable by Inaes' law: but Burglary was felony. In King Edmund's time only the Danes made it finable; possibly being guilty in their own consciences of their own propensity to rapine and plunderings. This privilege of the dwelling house was anciently called Hamsoca, or Hamsoken, or Hamsokne. 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. cap. 36.  The damages were more or less according to the time or season when it was done; for if 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, the owner must pay the damages: 
Ll. Inae 56. 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 was by alfred's law set at five shillings. 
Ll. Sax. c. 36.  Other actions also were then used as touching damage done to goods and actions upon the case; for in alfred's time the Plaintiff recovered not only damages for trespasses done to possessions and goods, 
Miror p. 301.  but also costs for injuries in point of scandal and defamation, in case the complainant specially declareth that he is thereby disabled or indammaged in his preferment and maketh proof of the same suitable unto the forms of our plead at this day, 
The ninth Commandment.  which conclude with per quod etc. or & deterioratus est etc.  
The Saxons were utter enemies to perjury: they punished 
a Ll. Aethelst. c. 10.  with eternal discredit of testimony; 
b Ll. Canut. c. 6.  and sometimes with banishment, or with grievous fines to the King, and mulcts to the Judge. 
Spec. Sax. l. 3, art. 53.  For that difference I find observed in those days between fines and mulcts, albeit the more ancient times used them for one and the same; for so the Historian, pars mulctae Regi. In all these matters where any interest was vested in the Crown the King had the prerogative of pardon; yet always the recompense to the party was saved; 
Ll. Edw. c. 18.  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, besides the general rule or law of eye for eye, tooth for tooth, etc. it now remains as lightly to glance at a few generals concerning the settling and property of possessions in point of title; 
Miror cap. 5. Sec. 1.  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: 
Inheritance.  yet the general custom of the Germans, as touching descent of inheritance was to the eldest son; For Tacitus speaking of the Germane Cavalry, saith, that the horse of the party dead went not to the eldest son ut cetera, but to the most valiant man amongst them of that lineage; which words ut cetera 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's 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, than the brothers; if they failed, than the uncles. And it's not only evident that in the public 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, alfred's 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 jointly. 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 estate. Such of them as were wrought by custom was occasioned from marriage, whereby if the man was settled of such estate as formerly hath been recited, and died; 
Dower.  his wife surviving, by ancient custom she had her dower or third part of such estate of inheritance. This custom though ancient, yet was not originally from the Germans, but from the Latins, who used to give dower with the man, 
Plut. vit. Solon. Apotheg. Lacon.  and receive portion with the woman. But the Germans learned from the Greeks otherwise; for the Laws both of Solon and Lycurgus forbade 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 Dotemnon uxor marito sed uxori maritus offered. The dower that was given in the first times was goods; and these were utensiles for war. And the wife many times returned to the man tokens of her love in the same kind, and not as gauges of future maintenance, unless we shall account war their proper calling from whence their livelihood issued. Succeeding times growing more calm changed the custom of fight 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 aught I can find; for not much above threescore years before the conquest it was by a public law confirmed, 
Ll. Sax. Lamb. Edm. fo. 76.  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, than the law or custom gave the wife half her husband's goods, if she outlived him; and if there were children, than 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. Lam. fo. 14. Ll. Inae cap. 58  I find no footsteps of Dower in Lands until the Normans time; who were also as well owners of the wife's 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 wife's pledge as he was her husband; although as a master he was free pledge for his servants: for the Law was, that in case the husband carried his wife away into another Lordship, 
Ll. Edm. Lamb cap. 7.  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, then in unity with him; and her estate or portion was rather appurtenant to her then 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, than her pledges were to satisfy the 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 Germane women, that admired valour in all, Idolised it in their husbands, and shared in it themselves; and upon occasion merited thereby not only to be companions in honour, but triumphers above men, ye their Commanders and governor's: Nor was this the original trick of the rude and uncompt Germane or Barbarous Britons, but of the wise Greeks; and received as may be supposed from the Lacedæmonians, upon as good ground as the wise of Leonidas the Lacedaemonian King rendered, who being asked why the Lacedaemonian women ruled their husbands: It's true, said she, 
Courtesy of England.  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 courtesy of England; which was but a perquisite of the wife's 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) who might probably bring it into this Kingdom or Country amongst the mingled people; 
Ll. Alm. tit. 92. Lindenbr. cod.  for this custom or law is found amongst the ancient Almain laws: differing only from the law this day in the evidence of the title, which now ariseth upon the birth of the child heard to cry; when as in those days the title vested not unless the child opened his eyes ut possit videre culmen domus, & quatuor parietes, which toucheth not only the opening of the eye, but also the rolling of it about.  
Estates that were derived out of the estate of an inheritance by the act of the party, 
Estate tail.  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 Taile, 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 father's 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. Concil. Brit. 333.  which carried the inheritance unto the daughters, upon the failing of the issue male: as in the example of Cenedritha daughter to Cenulfus amongst multitudes of others may appear. 
Ll. Alured. Sax. c. 7.  But where Lands were conveyed by writing or act of the party, it was a maxim that the will of the conveyor should be strictly observed: nor could ever any one that came in by virtue of such writing ever alien the Land to cross the currant of the original conveyance. The entailing of estates therefore was very ancient, 
Plo. come. 251. b.  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, 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 itself, which importeth that it sprang up while as yet the names of Angles and Saxons held in common cognisance: & 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 Copyholds of this nature so frequent, especially in those Eastern parts of this Island where the Angles settled, and from whom that part had the name of the East Angles.  

Gavel kind.  Another custom of descent remaineth, and that is to the children collectively, and it's called Gavell kind, or Gave-all kind: and by the very name seemeth at the first to arise rather from the donation of the parent or other ancestor, contrary to common custom, then 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 parceners; and for want of such, the brothers and sisters. It seemeth to be first the Law of the Goths or Jutes; 
Stephanus Dan. Burcus Suel.  for it remaineth in use in these parts of the Eastern Countries. But in later 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; other times 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 parts of this Island where that people most settled in a double stream; the first from the Athenians that loved the stateliness of their families, the other from the Lacedæmonians who desired rather the continuance of their families then their greatness. 
Emmius. Grec.   
The manner of conveying of estates between party and party was either by act of the party executed in his life time, 
Conveyances in writing.  or after his death: such as were executed in the 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 Latins, who taught them that course, 
Ll. Sax. cap. 37.  both for form and language; and Alfred enforced it by a particular law, viz. that all such as hold Lands by deed in writing should hold them according to the intent thereof, and not alien the same contrary thereunto, the intent thereof being proved by witnesses. The nature of the conveyances in these ancient times may appear by a deed of the Kings of this Island about 400 years before the Conquest, whereby he granted four plough lands in the Isle of Tenet unto an Abbess; wherein instead of that which we now call the habendum, 
Habendum.  the words are contulimus possidendum, etc. & after that followeth the uses of the deed tuo usui etc. 
Use.  and then concludes with a warranty, 
Warranty.  in these words, tu vero successoresque tui defendant in perpetuum nunquam me haeredesque meos contra hanc chartulam aliquando esse venturos: the effect of which last clause may appear by the Law of the sale of goods, which in those times was that if the sale of goods warranted did not hold, the loss should light upon the seller. 
Ll. Inae. c. 74. Ll. Sax. c. 24. Ll. Edw. c. 25. Signed.  The deeds were usually subscribed with the name of him that made the conveyance, or passed the estate; and if he could not write his name (as it befell often) then the Deed was under signed with his 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 Inas 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 Ingulfus 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, 
Witnesses.  in those days also they used to attest their Deeds by subscribing the names of such as were present; who being of greater or meaner rank, rendered the credit of the Deed accordingly more or less valuable: 
Acknowledgement.  and upon this ground did the acknowledging or proving of Deeds before the King, Bishop, County, or Hundred, first arise.  

Livery and Seisin. Cragius.  That was the Roman fashion; but the more ancient Germane way of conveyance was by livery and seisin, as most suitable to their ignorance, who had learning in as slight account as the Lacedæmonians 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 footsteps thereof in antiquity. For Aethbald the Mercian King above eight hundred years ago gave the Monastery of Cutham, 
Concil. Brit. 319.  with all the Lands thereto appertaining to Christchurch in Canterbury, and for the confirmation thereof commanded a clod of earth with all the Writings to be laid upon the Altar. Another Monument hereof more ancient by the space of above 100 years we find in that grant of Withered King of Kent, 
Concil. Brit. 192.  of four plough lands in the Isle of Tenet, the latter part whereof this clause concludes thus: Ad cujus cumulum affirmationis cespitem hujus supradictae terrae super sanctum altare posui.  

Last will.  But every man had not liberty to execute the law of his inheritance in his life time; for some were surprised with sudden occasions, and unexpected issues and ends; and in such cases they did what they could to declare their intents by last will, which by common intendment being in writing hath occasioned some to think that the Saxons in their original had no use thereof, being as they conceived so illiterate as not having the use of writing; but the Character remaining to this day evinceth the contrary; nor can those words of Tacitus, & nullum est testamentum in any rational way be expounded in this sense if we consider the context, which runneth thus: Haeredes & successores cuique liberi, & nullum est testamentum. Which in my opinion sounds in this sense: The heirs and successors 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 settled. 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. Malmsb. gest. Reg. l. 2. c. 2.  Nevertheless the Saxons had not been long acquainted with the Romanists, but they had gotten that trick of theirs also of disheriting by last will, as by the testament of Aethelwolfe and others of the like nature, in Histories may appear.  
The conveyances formerly mentioned concerned Lands and goods; but if no such disposal of goods were, 
Goods.  the ancient Germane 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 wife's dower or portion. As yet therefore the ordinaries had nothing to do with administration; for goods passed by descent as well as Lands; and upon this custom the Writ de rationabili parte honorum was grounded at the common law, as well for the children as the wife's 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 showed was the course of government in those darker times; nor did the fundamentals altar 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 only 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 kind 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 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 childbearing, in case of answer to criminail accusations. But more especially in case of regard of holiness of the time: as that of the Lords day, Saints days, 
Ll. Sax. cap. 10. Concil. Brit. 518.  Fasts, Ember days; for even those days were had in much honour. Nor only 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 Ascension to the eighth day after Pentecost; and though as Kings and times did change, so these seasons might be diversely 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 King's Court, the rest of the year being left vacant for the exercise and maintenance of Husbandry, and particular callings and employments, saving that even in those times the Courts of the County and Hundred held their ancient and constant course, Last of all, and as a binding law unto all, 
Miror cap. 4. Sec. 18.  it was provided that false Judges should give satisfaction to the party wronged by them, and (as the case required) to forfeit the residue to the King; to be disabled for ever for place of judicature, and their lives left to the King's mercy.   

CHAP. XLIII. An Epilogue to the Saxon government.  
ANd thus fare of the joints of Saxon government in their persons, precincts, courts, causes, and laws, wherein as the distance will permit, and according to my capacity I have endeavoured to refresh the Image of the Saxon Commonweal; 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 shown therein much of the wrath both of God and man. And yet it trenched not upon the fundamental law of the people's liberty. The worst effect it had was upon the Church in the decay of the power of Religion and worship of God. For after much toil and loss both of sweat and blood, the Danes (finding that little was to be gotten by blows but blows: and that the Clergy at the least was the side-wind in the course of all affairs) laid aside their Paganism, and joined with the Clergy; and as their converts and pupils gained not only their quiet residence, but the favour of the Clergy to make trial of the Throne, and therein served the Clergy so well as they brought the people to a perfect Idolatry, with times, places, and persons, and subjection of their estates to Church tributes. 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 burden, is hard to be 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 only by the liberty of the Saxon freeman; 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 show rather that the Danes were there then ruled here.  
To sum up all. The Saxon Commonweal 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, this by their armies gathered, not by promiscuous flocking of people, but by orderly concurrence of families, 
Tacitus.  kindreds, and Decenners, all choosing their own leaders; and so honour, love, and trust conspired together to leave no man's life in danger, nor death unrevenged.  
It was a beautiful composure, mutually dependant in every part from the Crown to the cloune, the Magistrates being all choice men, and the King the choicest of 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, divers from all other people; their laws honourable for the King, easy for the subject; and their government above all other likest unto that of Christ's Kingdom, whose yoke is easy, and burden 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 only got footing in the Country, but settled in the Throne; and after gave over the same to the use (as it proved) of another people sprung from the wild stock of Norway, and thence transplanted into a milder Climate, yet scarcely civilised; 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 terror of revenge upon the Danish pride, the Saxon cruelty, and Idolatry of both peoples; but after some distance showed 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 overruling the aspiring mind of Duke William of Normandy to be a scourge unto Harold for his usurpation, and unto the people for their causeless 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 busy men's minds with musing, whiles he catcheth the prey, then 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 Bishopric, and wherein amongst his other titles he calls himself son of William the great, 
Spicileg.  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, and principally of Harold himself, 
M. Paris. 1. An. Brit. Eccles. 96.  and 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 Clergy that otherwise might have opposed him, and of assurance of those to him that were his friends, and of advantage against Harold that had gotten the Crown sine Ecclesiastica authoritate and by that means had made Pope Alexander and all the Prelates of England his enemies. 
M. Paris: 2.   
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. 5.  wherein if Harold chanced to be vanquished, and the Crown offered itself 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 Nationall.  
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 as soon as he perceived 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 leave: 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 entered 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 at what he did pretend: it will be the skill of the Reader to consider the manner of the first William's Coronation, and his succeeding government. His Coronation 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. At his Coronation he made a solemn covenant to observe those Laws which were bonae & approbatae & antique leges Regni, 
Hoveden. Eadmer. Hist. l. 1. p. 13. M. Paris: vit. Gulielm. Malmsb, l. 3. foe 154. Wigorn. An. 1066. Glossar. Ll. Gul. Spicil. 190.  to defend the Church and Church men, to govern all the people justly, to make and maintain righteous Laws, and to inhibit all spoil and unjust judgements. The people also entered 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 selfsame in substance with the fealty that the Saxons made to their Kings, as will appear by the paralleling 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, itself being a Law in nature; or else includeth all within the words Lands and Honours, taking the same in a comprehensive sense 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 rendered why the King should restrain that defence to his private lands (if he claimed all by conquest) when as all equally concerned him; or why he should exclude the public, when as both himself and all he had was embarked 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 of limbs of the Commonweal he saith that they were built for the defence of the people and Kingdom; was this the service of walls and fortifications, 
Ll. Gul. Spicil. 61.  and not much rather of men within those places of strength? Certainly the plain English is, that in time of breach of public quiet and peace, the subjects were bound to defend the Kingdom, and in order thereto the people of the same, and of the Kings right included in the public defence; else it were a strange conclusion, that each man in particular, and in their own person alone was bound to defend the King's right; but being embodied, the Kingdom. And yet more clearly its apparent in that the service of the order of Knighthood which was the chief strength of the Nation in those days, was determined upon the service of the King, 
M. Paris. An. 1100, 1213.  and defence of the Kingdom; or which is more plain, for the service of the King in or for defence of the Kingdom, as the statute of Mortmain expounds the same. 
Stat. 7. E. 1.  But not to force the King's sense by argument; if the King had purposely omitted that clause of the Kingdom's safety as of inferior regard to his own personal interest; it was one of his rashest digressions, wherein he soon espied his error: for in the midst of his strong and conquering army he held himself unassured, unless he had a better foundation then that which must change with the lives of a few at the utmost. And therefore besides the oath of fealty formerly mentioned he established a law of association, that all free men should be sworn brethren; 
Ll. Gulielm. Spicil. 59  1. To defend the Kingdom with their lives and fortunes against all enemies, to the utmost of their power. 2. To keep the peace and dignities of the Crown. 3. To maintain right and justice by all means, without deceit and delay. Join 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 public above all: and differing from the Saxon fealty only in this that that was in one oath, & this in two. Wherefore whatsoever respects steered in the rear of the King's course it's 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 entered the first Norman upon the Saxon Throne: and as he had some colour of right to countenance his course, 
William Rufus.  so had his son his father's last will, and yet he had as little right as he. This was William Rufus that was of his father's way, but of a deeper die; 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 fist taken a recognizance of him for his good behaviour towards them, which he assured as fare as large promises and protestations would 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 people's leave 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 soldier; and upon these principles had obtained the love of the Norman Barons (the flower of his father's chivalry; 
M. Paris An. 1088. ) & the liking of the Clergy, after they had found by experience the emptiness of their hope in his brother William, and was every way so superior 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's true the English stooke 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 fare 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 fit man for their turn; being now at hand and Robert at Jerusalem, and being a native born in England, civilised 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 year's service in the wars. And therefore it's not marvellous if they applied themselves to him in a way of capitulation, 
Math. Paris 1100. Eadmer. Speed.  and less wonderful if he harkened thereunto; and yet neither unadvisedly yielded unto by him, nor traitorously 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 aught to be. For that capitulation was in substance settled by the ancient laws of the Saxons mixed with some additions of laws made by the King's father, with the joint advice of the grand Council of the Kingdom; all which both the Norman Williams had often cofirmed by solemn protestations and promises, however their actions upon sudden surprisal were malae consuetudines and exactiones injustae, 
Math. Paris.  by this Kings own acknowledgement. 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 entered 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 difference 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 & 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 had, he did apply it and himself in the settling of the Laws by advice of Common-council; I say, not by advice of his own heart or two or three Norman Lords, 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 joint advise of the grand Council of the Lords and wise men of the Kingdom of England. 
Spicileg. p. 5.  I will not insist upon force of argument to show 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 Leichfield 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 cognisance, 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 shows not only the power of that Council in Church-matters, but also that the Canon was no further in force then the same would allow; and this was also done by the Common council, and the Council of the Archbishops, Bishops, Abbots, and all the Princes of the Kingdom; which connection shows plainly that there was 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, 
Ll. Gulielm. c. 58. Spicil.  as may especially appear in the charge of arms imposed upon the subjects; it's said it was 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, 
Antiq. Brit. fo. 110.  that is, by the Parliament of England: and as probable it is that Bishops were therein also elected, for that the Bishop of Lichfield resigned his Bishopric in such like assembly, if the meaning of Lanfrank be rightly understood, 
Baron. Anal. An. 1070.  who saith in his letter that it was in conventu Episcoporum atque Laicorum.  
Lastly, that one Law of this Kings which may be called the first Magna charta in the Norman times, by which the King reserved to 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 then either of his sons that yet had less pretence of superlative power to countenance their proceed.  
William Rufus was a man of resolution no whit inferior, 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; & therefore it's the less marvel 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 loath 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 of.  
But Henry the first was more wise, and being trained up even from the Cradle in the English garb, moralised 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 reseised and reassumed the English in partnership with the Norman in their ancient right of government; and reconciled the minds of the people under a lively hope of enjoying a settled government. Nor were they greatly deceived herein; for his course was less plannetary 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 then of any of his predecessors. The reason will rest in this, that the writers of those times touch more upon matters of ordinary then political observation, and regarded rather the thing then the place or manner how. The Laws therefore although they are not entitled as made in Parliament, yet in the continuation of the History of Bede its noted that the King renewed or confirmed the ancient Laws in Concilio peritorum & proborum virorum regni Angliae, 
Bede hist. l. 3. c. 30.  which may give sufficient cause to suppose that he declined not the ancient way no more than he did the ancient Law.   

CHAP. XLVII. Of the Franchise of the Church in the Normans time.  
THe Canon law that ever since Augustine's coming like Thunder rumbled in the cloud, 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 a fare of. For the vast body of the Roman Empire like a body wasting with age, died upward, and left the Britons to their own Laws before the second beast was grown, which being young was nourished under the Imperial Law of the first beast, till it grew as strong as its dam, and began to prey for itself. The Empire perceiving its grey hairs, and the youthful courage of this upstart, was glad to enter mutual league with it, the one to maintain the Ecclesiastical Monarchy of the other, and that the Imperial Monarchy of the former; and so became the Canon and Imperial Law to be united, and the professors to be utriusque juris. But this parity continued not long; the young beast looked like a Lamb, but spoke like a Lion; and contrarily the Eagle had cast its feathers and could tower no more; so as by this time the Pope was too good for the Emperor and the Canon law above the Imperial; yet allowing it to serve the turn: and so the professors 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 Emperors could entitle the Pope to no power here, because none he had. Austin the Monk undertakes the work; he offers it to the Britons 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 leave, 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 Conqueror was scarce settled 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 trial with the Commons of England; and then propounds four several expedients, enough to have undone the whole Commonweal in the very entrance; had not the superstition of those times blinded both Parliament and people, and rendered them willing with that which their successors in future ages often repent of.  
No offence against the Bishop's Laws shall be handled in the Hundred.  
By the Saxon law Church matters had the pre-eminence both in the Hundred, and in the County; and it was the Bishop's duty to join 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 responsal unto the temporal Judge for any matter concerning it, but unto the Ecclesiastical power; and this not only 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 Bishop's 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 show 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 trial 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 Countryman 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 Clergy; 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 rests till it breaks all banks, and sometimes over-reaches its own guard, and cannot return when it would. And thus it fell out; for many times the Pope and Clergy became protectors of the people's liberties, and kept them safe from the rage of Kings, until the time of restitution should come; and became not only a wall of defence to the one, but a rock of offence to the other. For the Triple Crown could never solder with the English, nor it with that; the strife was for prerogative, wherein if the Clergy gained, the Crown lost, and no moderation would be allowed. For the conquering King was scarce warm in his Throne when as the Pope demanded fealty of him for the Crown of England, 
Spicil. 164 Baronus Anal. An, 1068.  and the Kings own good Archbishop and friend Lanfranke delivered the message; as also Anselme did afterwards to William Rufus, which though King's had courage enough to deny, yet it shown 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. 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. 
Edmer. hist. l. 1. p. 25.   
Thus have we the second bravado of the Canon Law; for as yet it was not so fully entered, as it seemed. The words of the act of Parliament its true were general; yet their sense was left to time to expound, and the course of succeeding affairs nevertheless passed with a non obstante. For whereas in those days the Clergy claimed both legislative and executory power in Church matters, the Normans would allow of neither, but claimed both as of right belonging to the Imperial power of this Island, originally and only. As touching the legislative power, its 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 never allow to the Metropolitans the power of calling Synods nor such meetings, 
Edmer. hist. p. 6. & 24. Spicil. 163.  but by their leave, although it was earnestly contended for. Neither could the Clergy prevail to exclude the Laity out of their Synods, being assembled, nor from their wont privilege of voting therein; albeit that for a long time by Canon it had been contradicted. The differences between the Clergy and the Kings concerning these and other matters grew so hot, that Kings liked not to have any Synods or meetings of public Council; 
Epist. ad Pascal. pap.  and Archbishop Anselme 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 controlled, 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 fare 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 Anselme) he recontinued the liberty of public consultations, and yet maintained his dignity and honour seemly well. I shall not need to clear this by particulars, for besides the public consultations at his entrance, and twice after that, for supply or aid for his wars, and the marriage of his daughter with the Emperor, it's observed that the Archbishop of Canterbury summoned a Council at Westminster, but it was authoritate Regia, and that there assembled magnae multitudines Clericorum, Laicorum, 
Conten. Wigorn. An. 1127.  tam divitum quam mediocrium; and that upon the third day the debate was the 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 Counsels with the Clergy. 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 Counsels, 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 Ecclesiastical; but whether Temporal or Ecclesiastical the first occasion was, yet in their meetings they handled both as occasion offered itself.  
Secondly, as the Clergy could not attain the sole legislative power, so neither had they the sole juridical power in Ecclesisticall causes; for not only in case of error 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 cognisance were possessed by the King's Court in the first instance, as that of Peter-pences, which was a Church-tribute, and might be claimed to be proper the Church cognisance much rather than Tithes; and yet by the Law of this Kingdom in the conquerors time it is especially provided, 
Ll. Gulielm. c. 20. Spicil. 180.  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 cognisance, 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 cognisance of them in their own Courts, and fines for invasion of the Church rights. But because this may seem but colourable, and by way of flattery of the Churches right, and not in opposition thereof: In other things it will appear plainly that Kings were not nice in vindicating their own claim in matters which the Clergy held theirs quarto modo, as namely in the case of excommunication, a weapon first fashioned by the Churchmen, and in the exercise whereof themselves were in repute the only masters; and yet in this were mastered by Kings, whose Laws directed and restrained the swelling of that censure, 
Eadmer. hist. p. 6. Ll. H. 1. cap. 5.  and made it keep measure; whose Tenants and Officers or servants must not be meddled with by this censure, but by the King's leave; nor must they be called to answer but in the Kings 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 sense; seeing that it was no other than the ancient custom used amongst the Saxons before that the Clergy had either purpose or power to reach at such a height as afterwards by degrees they attained unto. Furthermore, the Hierarchy as they neither could 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 Bishopric but a naked commodity, if not robed with a Barony. Nevertheless, before that ever they knew that honour, what ever the Canon was for their election, yet both their title and power de facto was derived to them from the Kings, who also invested them with 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 predecessors, notwithstanding the many assaults from Rome, and treacheries of the Cathedrals within the Realm; 
Eadmer. Hist. l. 2. p. 53. & l. 3. & l. 4. Eadmer. hist. l. 1. & l. 5. Wigorn. An. 1128. Spicil. 142.  and albeit sometimes Kings were too 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 Anselme and Ralph his successors, 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 Baronies were so unquestionably interessed in the public affairs of the Commonweal, that it was against common sense to deny the States their vote and cognisance 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: politicly therefore it was done by Kings to hold these men by a Golden hook, that otherwise had prostituted themselves to a foreign power, and proved absolute desertors of their Country's 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 Bishoprics and Dioceses 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 an other Bishop with part thereof and so to make two Dioceses of one, 
Eadm. l. 4. p. 95. 96.  as befell in the case of the Diocese of Lincoln, out of which the Diocese 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 Battle in Sussex, in the time of William the Conqueror may appear. 
Spicil. 65.   
Lastly, what ever the first intention of this recited Statute were, it may probably be judged, that it was but a noise to still the Clergy; and that it never had more than a liveless shape, not only in regard of the beforementioned 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, 
Ll. Hen. 1. c. 7.  that the Bishop and Earls, with other the chief men of that County were there present as assistants in directory of judgement. And that in order are handled first matters of the Church; Secondly, Crown pleas; Thirdly and lastly, Common pleas; however therefore the King spoke 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 spoke fair till they were settled in their Thrones, and afterwards pleased themselves: for by the general thread of story it may appear that the Clergy in those times were more feared then loved, and therefore ridden with a straight reine. 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; 
Eadmer: hist. l. 4 p. 95.  wherein they mended their pace, and got that without noise which they had long striven for, viz. the preeminence 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 Clergy and the Laity thus lie divided in several Cels.   

CHAP. XLVIII. Of the several subservient jurisdictions by Provinces, Marches, Counties, Hundreds, Burroughs, Lordships, and Decennaries.  
HAd the Normans owned no other title then 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 Conquerous, 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 conquerors 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 nonsense to have holden two peoples 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, 
Eadmer. hist. l. 4. p. 96.  as they did divide the Diocese of Lincoln into two Dioceses by advice of the Bishops, Princes, and other wise and holy men, 
Ll. Hen. 1. c. 6.  and turned the Abbey of Ely into a Bishops See. But it was their wisdom to preserve the ancient Landmarks; and no less both wisdom and care to continue their due privileges and interests to each. Every County had its Court, 
Ll. Gulielm. cap. 41. & 42.  and every Court its wont jurisdiction: No complaint must be to the King's Court if right may be done in the County; no distress must be taken but by warrant from the County, and that must be after complaint thrice made. The County court must be called as our ancestors have appointed: 
Ll. Gulielm. cap. 64.  such as will not come as they ought, shall be first summoned, and in case of default destrained, at the fourth default; the complainant shall be satisfied out of the distresses so taken, and the King also for his fine. These are the express Laws of the Conquerors own establishment; 
Ibid. c. 64.  the last of which also was 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 settled those concerning the County court, 
Ll. Hen. 1. c. 7.  namely, 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 proceed in the handling of causes. Neither were these causes of a petty regard only, but of greatest concernment: One example I shall remember the reader of, 
Epicil. 197.  and not recite in terminis, but refer to Mr selden's own pen. The occasion was this: Odo the conquerors half brother was by him made Earl of Kent, and therewith had the gift of a large Teritory in Kent; and taking advantage of the King's displeasure at the Archbishop of Canterbury, 
Stigand.  possessed himself by disseisin of divers Lands and Tenements belonging to that See: Lanfrank the succeeding Archbishop being informed hereof, petitioned to the King that justice might be done him secundum legem terrae; And the King sends forth his Writ to summon a County court: the debate lasted three 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 judgement 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 manors, two Townships, with many liberties upon the votes of the Freeholders in a County court, and that the sentence was allowed and commended by the King, and submitted to by all.  
In the next place we are to come to the Hundred Courts, 
Hundred court.  of which there are by the Normans allowed two sorts; the first whereof was holden twice a year: This was formerly called the Torn, and was the Sheriff's Court; hereof little notice is taken, 
Ll. Hen 1. c 8.  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. This Court is to be holden once in each month; 
Ll. Gulielm. cap. 41. Ll. Hen. 1 c. 7. Ll. Gulielm. cap. 41. Ll. Gulielm. cap. 42.  and no suit to be begun in the King's Court that regularly aught to begin in the Hund ed. No distringas shall issue forth till three demands made in the Hundred. And three distresses shall then issue forth; and if upon the fourth the party appear not, execution shall be by sale of the distress, and the complainant shall receive satisfaction.  
But by the latter Laws of the same King there is but two summons allowed, and then two distresses; 
Ll. Hen 1. c. 64.  and in case no appearance be, execution shall be for the complainant, and for the King's fine.  

Ll. Hen. 1. c. 7.  Lastly, as the case concerned either persons or places, sometimes they used to join several Hundreds together into one Court: but this was by special Commission or Writ.  
As touching inferior Courts of Tows and Manors, there's little observation to be had, 
Courts of Towns and Manors. Ll. Hen. 1. c. 7.  being of too private a regard to come into fame in those rough times; yet in Henry the firsts Laws its ordered that Town courts should meet every month; and that Lords should hold Pleas either in their own persons, or by their Stewards, and that the chief man in that Parish, with four other of the chiefer sort, and the Minister or Parish Priest should join their assistance in that work. But in nothing more did the Norman Kings show their paternal love to the Commonweal, 
Decenners.  then in the law of pledges or Decenners: for as of all other beauties it 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 only, but joining the Normans to the Saxons in the same bond of brotherhood, utterly drowned thereby, all memory of Lordly power, and so of divers people's making one, conquered even conquest itself, if any were, and made all joynt-partners in one common liberty.  

Ll. Gulielm. cap. 64. Ll. Hen. 1. c. 8.  Every free man must be under pledges to satisfy justice in case of delinquency.  
Over every nine persons under pledges there must be one man in authority.  
View of free pledges must be to see that the Decennaries be full; and if any be departed, to inquire the cause: and if any be come in, whether he be under pledges or not.  
And thus the Norman Kings had their people under triple 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 joined 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 befell 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 Sovereign Lord, whose claim was by title, as hath been already noted. The other sort either did appear to be the Normans friends, or for aught 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, whereby is granted, 
Ll. Gulielm. cap. 55.  That all the freemen 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 Confessors time.  
Under the word Tax is understood monetagium commune per civitates, or comitatus; so as aides and escuage are not included, for they are not charged upon Counties and Cities, but upon Tenors in Knight-service: nor was Dane grelt hereby taken away, for that was a Tax in the Confessors time, and granted by Parliament.  
So then the Norman Kings claimed no other right in the lands and possessons of any of their subjects, then under and by the law or common right; and they conclude the law with a sicut, which I thus English, As it is enacted to them, (or agreed by them) and unto them by us given and granted by the Common-council of our whole Kingdom. 
Statutum est eyes, & illis à nobis datum & concessum per commune concilium totius Regni nostri.  I leave the words to be criticized upon as the Reader shall please; being well assured that the most strained sense can reach no further then 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 then 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 itself did most importune, so tenderly regarded the liberty of men's estates, that no distress could issue without public warrant obtained, 
Ll. Gulielm. cap. 42. & 45.  and upon three complaints first made, 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. Norff.  and was pleaded in bar against all usurpations and intrusions, under pretext of the Conquerors right whatsoever, as by the case of Edwine of Sharneburne may appear. Secondly, that the free men 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 free men, as the Laws of the Conqueror, 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. 
Ll. Gulielm. cap. 15.  Thirdly, 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 free men in the common Mint, and in their villains. Concerning the Mint, 
Ll. Aethelst. c. 6 Ll Aetheldr. c. 22.  that the Saxons having made it as parcel of the demesnes of the kingdom, and leaving to the King only an overseership, reserved the control and chief survey thereof to the grand Council of the kingdom, who had stated the same in the Confessors 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 Confessor, whose laws also (with some alterations by the Conqueror, with common advice) he also established. Concerning the Lords right to their villains it is observable, first, 
Ll. Gulielm. cap. 65 & 66.  that liberty of enfranchisement was allowed, which could never have been, had not the liberty of the subject been saved. Secondly, that Enfranchisement properly is the work of the people, or the body, and the Lord was to 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 free man, as I conceive, to all intents and purposes. 
Ll. Gulielm. c. 66.  Otherways there might be manumission, as if the villain remained in a City, Burrough, 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 assigns: 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 enfranchisement, 
Ll. Gulielm. 65.  yet would they not allow them free liberty of disposing them as other chattels; nor by the law of the Conqueror might they sell their villains out of the Country, 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 Anselme 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.  

First and second Commandments.  One God must be worshipped; and one faith of Christ maintained throughout the whole Kingdom.  
This is found amongst the Laws of King William published by Mr Selden, 
Ll. Gulielm. c. 51.  and was for substance in the Saxons time, saving that we find it not annexed to the Crown summarily until now; so as by this law Heresy and Idolatry became Crown pleas; and the like may be collected concerning blasphemy, concerning which it's said, as of the servants killing his Lord, that its impardonable: 
Ll. Hen. 1. c. 75  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 as possibly in the County court of the Torn where the Bishop was present Jura Divina edocere.  
Peterpences, Ciricksceate, and Tithes, must be duly paid.  
These are all Saxon laws united to the cognisance of the Crown, as formerly hath been showed: Only the first William especially provided, that in case any man worth thirty pence in chattels did pay four pence for his part; 
Ll. Gul. c. 18. etc. 20. Ll. Hen. 1 c. 10.  it should be sufficient both for himself and his retinue, whether servants or retainers: and defaults in payment of these duties were finable to the King.  
Invasion upon the right of Sanctuary fined.  
This I note, not so much in relation to any such law amongst the Saxons, 
Ll. Gulielm. cap. 1.  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 privilege 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 public 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. Commandment. Ll. Hen. 1. c. 10   
Before this time no days for solemn worship of God were acknowledged by the law of the Kingdom, but the Lords days. 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 inquirable, and punished amongst other pleas of the Crown.  

6 Commandment.  Breach of the peace, bloodshed, and man slaughter 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 murder 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, 
Ll. Gulielm. cap. 67.  partly because being a warlike people, 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, entering upon the rear, opinion stepped in, that a miserable life was more penal than death; and therefore in crimes of the deepest die they would to fine and loss of member: 
Ibid.  and which course prevailed most, 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 purse rather smarted then the body, wherein they proceeded so fare as to punishment of death by violence; yet was not the fine to be measured by the judgement of the mercy or rigour of any person, 
Miror 254. Ll. Gulielm. c. 8, 10, 12, 13, etc.  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 cognisance, and the peace is now called the King's peace; not so much because that it is left only to his providential care to maintain as because the fines, 
Ll. Gulielm. cap. 3.  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; 
Ll. Hen. 1. c. 10.  but whether the peace was broken upon holy or common ground, or upon a Layman, 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, 
Ll. Gulielm. cap. 53.  the Lord of the manslayer was charged to have him forthcoming within a certain time, or to pay the King's fine of 46 Marks so long as he had wherewith to satisfy, and what remained the whole Hundred was charged. But if the party slain were of any other people, 
Ll. Gulielm. cap. 26.  the Hundred was immediately charged with the manslayer, and must bring him to answer within a certain time, or pay the King's fine. The third and last is, the care they had to prevent breach of peace for the future: First in settling of nightwatches 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. 
Ll. Gulielm. c. 56. Ll. Gulielm. cap. 46. Ll. H. 1. cap. 8.  Secondly, in forbidding entertainment of unknown persons above three days without surety for his good abearance, or becoming his pledge for the public safety, nor to let any person pass away without testimony, under the ministers and neighbour's hand of their good carriage.  
A man committing adultery with a married woman shall forfeit to his Lord the price of his life. 
7. Commandment.   
This made the crime inquirable at the common law as an offence contra pacem Domini; 
Ll. Gulielm. cap. 14.  but afterward it was finable to the King, and inquirable 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 fineable; but if a Rape be committed, 
Ll. Gul. c. 19  it shall be punished with loss of member.  
The Crimes 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.  

8. Commandment.  Robbery is finable.  
The different Law between the Saxons, Angles and Danes, now by the Normans is settled in the more merciful way; and in case the delinquent made flight, the pledge satisfied the law for him. 
Ll. Gulielm. cap. 4. Glanv. l. 6. c. 6. Hoveden. 9 Commandment. Ll. Gulielm. c. 57 Ll. Hen. 1. c. 10.  But in the latter times of Henry the first the law was again reduced to the punishment of this crime by death, and so hath continued.  
There shall be true weights and measures throughout the Kingdom, and those shall be sealed. And this was the constant Saxon Law.  
Perjury to be punished by fine, and as formerly still inquirable amongst the Crown pleas.   

CHAP. LI. The like of Laws that concern common interest of Goods.  
IF Cattles be taken by distress the party that will replery them shall pay for the return of the Cattles, 
Ll. Gulielm. cap. 6.  and give security to bring the distress into the Court, if within a year and a day it be demanded.  
This Law I take to be intended where the Cattles are taken damage faisant; 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, 
Ll. Guilelm. c. 42.  and so many defaults made; and in such case distress shall issue by especial order from the County court.  
I noted this partly to show the difference of the Normans from the Saxons in the delay of execution of justice by so much mean process, and partly to show the difference between the Norman times, and these days wherein men's Cattles lie open to the distress of every oppressing or extorting Bailiff or unknown person, and no summons made at all, whereby many poor men's estates are either undone, or they must submit to the unjust demands of their adversary.  
No manner of goods of above four pence in value shall be bought unless in the presence of four witnesses of the Town. 
Ll Gulielm. cap. 43.  And the vendor shall satisfy 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 Cattles shall be sold, but only in Cities, 
Ll. Gulielm. cap. 60.  and before three witnesses; nor shall any thing forbidden be sold without warranty.  
No fairs or markets shall be holden, but only in Cities, 
Ibid. c. 61.  Burroughs, walled Towns and Castles.  
These Laws concerning sales and markets were ancient Saxon laws, and tend all to the avoiding of cheating men of their Cattles by surreptitious sale of them made by such as had no right.  
Goods found shall be published by the finder to the neighbourhood; 
Ll. Gulielm. cap. 7.  and if any makes claim and proof of them to be his, he shall have them, giving security to bring them into the Court, in case any other shall within a year and a day make his claim thereto.  
The children of persons intestate shall equally divide the heritage. 
Ll. Gulielm. cap. 36.   
This is in terminis the Saxon law, and therefore concerning it I shall refer to the same formerly recited; only I shall add hereto the law of Henry the first, 
Ll. Hen. I  which may serve as an explanation of the former. Any free man may devise his chattels by will: and if he die intestate, his wife, children, parents, or next kin shall divide the same for his souls good. The first branch whereof was ancient, and doubtless in continual use; but the iniquity of the Norman rude times was such, that the Lords under surmise of arrears or relief would seize all the personal estate after the tenant's death, and so the right of last wills was swallowed up; but this restoreth the power of last wills into its place, and 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 disannul 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 Conqueror: for generally it must be granted that tenors 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 public person of all: so were his donations ordered chief to advance the public service; and in this regard the tenure by Knight service might more principally challenge the Kings regard then 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 encumbrances raised upon this most Noble and free service, which through the evil of times by this means became the most burdensome and the only loathed and abhorred service of all the rest. I say through the evil of times; for it cannot lodge in my thoughts but in the Norman times the encumbrances were nothing so great as of latter ages, and that much hath been imputed to the Laws of the Conqueror, which they never deserved, as may appear in these particulars, which the Laws of Henry the first have preserved in memory.  
Tenant of the King or other Lord dying, 
1 Relief. M. Paris An. 1100, & 1213,  his heir shall pay no other relief then what by Law is due.  
That which by Law is due is set down in the laws of William the Conqueror.  
The Relief of an Earl 
Ll. Gulielm. cap. 12.  

8. Horses saddled and bridled.  
4. Helmets.  
4. Coats of Mail.  
4. Shields.  
4. Spears.  
4. Swords.  
4. Chasers bridled and saddled.  
1. Palfrey bridled and saddled.    
The Relief of a Baron 
Ibid. c. 23.  

4. Horses with Saddles & Bridles.  
2. Helmets.  
2. Coats of Mail.  
2. sheild's.  
2. Spears.  
2. Swords.  
2. Chasers bridled and saddled.  
1. Palfrey bridled and saddled.    
The Relief of a Vavasor to his Lord 
Ibid. c. 24.  

His best Horse.  
His Helmet.  
His Coat of Mail.  
His Shield.  
His Spear.  
His Sword.  
Or if he had no Arms, than he was to pay s. 100    
The relief of the Country man is the best beast that is in his possession; 
Ll. Gulielm. cap. 29.  and of him that farmeth his Lands a years rend.  
These are the Reliefs due by law, and now settled in goods or arms, but afterwards turned into money; and its 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.  

2. Marriage.  The King's tenant shall advise with the King in marriage of his daughter, sister, niece, or kinswoman; and his widow in like manner.  
The sense 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 fare 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 unsettled, 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 or all his lands, or have jointure 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 public receive damage. And therefore if this custom were of Norman birth, it was begotten bpon a Saxon law, and might the rather be owned by the English.  

3. Dower.  The widow of the King's Tenant having children, shall have her dower and portion so long as she keeps unmarried.  
The portion here is in the Latin word maritagium, which I take to be the marriage portion given by the husband according to the Saxon custom, when as 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 was a privilege 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 people's Normans and Saxons into one: I say it was principally sought after by the Norman conqueror, 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 blood, and all other unhappy events of enmity, then by taking away enmity itself? or a more speedy and certain course for union, then 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 proceed therein, than the settling of the constant maintenance of the wife, in case of survivorship by the law of dower of the Lands and Tenements of the Husband? 
Lindenbrog. 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 only during coverture, but by reason of this title of Dower the women became tenants, and under the Lord's 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 courtesy; 
Miror fo. 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 fare 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 than stood, upholden and allowed amongst them, principally for the speedy settling 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 nigh two hundred year's experience with the Britons, besides a world of bloodshed that might have been spared, ere they could find out the right way to a desired peace by mutual marriages had between them.  

cap. 4. 4. Wardship.  Such widow shall have the custody of the Lands of such children, or otherwise such other person as by right aught to have the same.  
This is the first news of Wardships, that passed abroad cum privilegio of a received Law, which together with the former declare the right custom of the Normans, 
M. Paris.  and thereby the injustas consuetudines quibus Angliae regnum opprimebatur, viz. Arbitrary relief taken of the Tenant's estate, arbitrary marriages made of their persons, 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 unwife, under pretence to train him up in military service fit for the Lords own safety, and the Kingdom's lifeguard: but it was the proper ground of the Lords own seizure and right of wardship, he being looked upon by the eye of common reason as the only meet man that both could and would effect that work, so as might be most advantageous to the public, which seemed to be chief 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, as the Mirror of justice saith (fo. 258. 
Ll. Canut. 37. ) 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 public service in point of war, especially being possessors of a known right of relief, 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 public, 
Asser Meneu.  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 government of the Conqueror, and principally of his son Rufus: and though it be questionable whether it settled first upon the Normans or the English, yet its 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 than were, was evident and superlative; especially the customs being under the regulating of Law, and not of any arbitrary power, and can be no precedents of the relief, marriage and wardship that after ages usurped.  
Tenants in Knight's service shall hold their Lands, 
cap. 5.  etc. acquitted of all taxes, 
5. Acquittal.  that they may be more able to provide Arms, and be more ready and fit for the King's service, and defence of the Kingdom.  
This law whither it be a renewing of a former custom, or an introduction of a new Law, it's 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 public benefit, viz. either for the preparation or maintenance of public 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 expenses in the war, and maintenance of the public charge of the same war besides.   

CHAP. LIII. Of divers Laws made concerning the execution of justice.  
ALthough in proceed in cases of vindicative justice delinquents might seem to be left rather to the fury then 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 persecution 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.  
No sentence shall pass but upon averment of the complaint by accuser or witnesses produced. 
Ll. Hen. 1. c. 5.   
Fine and pledges shall be according to the quantity of the offence. 
Ll. Hen. 1. M. Paris.   
By these two laws of Henry the first 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.  
Forfeiture of felon's Lands is reduced to a year and a day. 
Miror fo. 261:   
The Normans had reduced the Saxon law in this case unto their own last, which stretched their desire as fare 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.  
Intent of criminal offences manifested by act punished by fine or mulct.  
This by alfred's law was punished by Talioes' law, 
Miror fo. 254.  but now by a law of Henry the first reduced to mulcts.  
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, which must be acknowledged to be rigorous, 
Miror fo. 141.  although not altogether without reason.  
No person shall be imprisoned for committing of mortal crime unless first he be attainted by verdict of twelve men. 
Ll. Hen. 1. c. 5.   
By imprisonment is intended close imprisonment, or imprisonment without bail or mainprize; for otherwise its apparent that as well by the Saxon as Norman laws men were brought to trial by restraint.  
Appeals of murder restrained within the fourth degree.  
Before this law Appeals were brought by any of the blood or kin of the party slain; 
Miror cap. 2. Sec. 7.  but now by Henry the first restrained. The ground seems to be, for that affection that runs with the blood, grows so cold beyond the fourth degree that the death of the party is of so small account as can it 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 kindred, became limited to the fourth degree, as I conceive from the Ecclesiastical constitution concerning marriage.  
Two things more concerning juridical proceed may be noted, the one concerning speedy course of justice, wherein they may seem to justify the Saxon way, but could never attain to their pace, in regard they yielded so much time to Summons, Essoines, etc. 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 its 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 Kings own person, and a war raised by the whole Kingdom, or representative body thereof, which is commonly done in defence of public interest, and seldom in any offensive way, unless in recovery of a right of possession, either formerly lost, or as yet not fully settled. 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, Kings having been occasioned to levy war of their own accord, but in such case could neither compel the persons of his subjects or their estates to be contributory. And of this nature I take the war levied by Harold against the Conqueror to be, wherein the greatest part of the Kingdom was never engaged, nor therefore did it feel the dint of the Conquerors 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 it may connive thereat. But to set this consideration aside, as not coincident at all with the Norman engagements after they were crowned, and to take all the subsequent wars to be merely defensive of the right of the Crown, as in sober construction they will appear to be: as touching the levying of money, its evident that it lay only in the power of the grand Council of the Kingdom; for otherwise the laws were settled that no Tax should be made or taken, but such as were due in the Confessors time, as formerly hath been showed. 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's 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 other cases. 
Ll. Gulielm. cap. 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 join in defence of their Country: This is the common fealty or allegiance which all men own; 
Ll. Gulielm. c. 59  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. 
Ll. Gulielm. 61.  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; 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 fare 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 is 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 Conqueror, and the whole reign of Willam 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 public, according to rules, do otherwise then 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 remembered, 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's his duty first to stir himself, and stir up the rest; to lead them and order them, as may be most for the public defence, and to govern the Army by such Laws as are or shall be established by order of the public meeting, and in case of sudden exigences to use his own wits; and in all this is the common liberty no whit infringed, in regard that all is for the public defence, to which the Knights are bound by their tenors, and all others by the law. And this was this Kingdom's case in the Normans time, that both Leaders and soldiers, whether by election of the people, or prescription, yet all served for the defence of the Kingdom. Nor were they compelable to any other service inconsistent therewith, nor to stand to any judgement in such cases differing from, or contrary to that of the Parliament itself.   

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 show, that as affairs than stood with the Conqueror, it was impossible for him to merit that name against the stream of providence, that had preingaged him to three sorts of men, viz. the Normans, the Clergy, and the Commons of England.  
It must be taken for a ground that Duke Willam 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's 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. c. 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 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 Conquerors 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. This was his gift of Manors, Lands, and Franchises unto his soldiers, completed with their ancient rights, and privileges in free service; otherwise it had been little better than a trap to bring his own men into bondage, who but lately were free soldiers under no better than a Duke of their own election; and their government in their own Country, however big, yet had not yet brought forth a sovereignty into the world; their Duke no complete 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 meaned 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 Saxons, 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 a kin to theirs, and in part settled by the Danes, in that part of the Kingdom where themselves most resided. It must be concluded, that a government by 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 successors 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 Clergy, a considerable part of the Kingdom in those days, when as in every Nation they grew checkmate; and in this Kingdom had well nigh the one half of the Knight's 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 inferior to that of the Kings own, and therefore sufficient to stop an absolute conquest, unless it 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 Clergy, 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 Clergy; the other as Judge of the title of the Crown by the Kings own election; and that by sentence; for the King had merited of him, if not to hold the Crown itself by fealty to the Roman See, yet by such services, as that the triple Crown should be no loser. The King therefore must resolve to have no more to do with the Church then 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 Churchmen that would catch the good will of the Laity by condescension, 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 gripped, though it would save the world from ruin. In all which regards the Norman Duke was too far inferior to attain by conquest any thing in this Kingdom, wherein the Pope or Clergy claimed aught 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, 
Hoveden. lib. 6.  both Lords and others, that by affinity and consanguinity were become Englishmen to the Norman use; others were purchased thereunto by the Clergy, that were zealous for the Pope's honour, that was engaged in the work. 
Ingulsus 512.  Of those likewse that were resolute in the defence of the liberty of their Country 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 Conqueror; and this was not done only 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 Duchy. It was therefore wisdom in the Conqueror to settle the English affairs 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, what ever it should be. These were afterwards by the King looked upon, not as enemies (as the precedent of Edwin of Sharneburne witnesseth sufficiently) but upon such as either were or by fair carriage would be made his friends; 
Gloss. 227.  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 Clergy, 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 then of the Governors own person.   

CHAP. LVI. A brief survey of the sense of Writers concerning the point of conquest.  
THe clamours in story that the Conqueror 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 Conqueror) merely 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 Conqueror, than was his will the only 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, than were it not amiss to consider from what sort of men these complaints or relations do proceed, viz. from Writers that have been cloistered men, little seen in affairs of State more than by common report and rumour; prejudiced by the King's displeasure against their Cloisters, and therefore apprehensive of matters in the saddest sense, and many times far beyond the truth, and might as well be supposed to misrelate, as to mistake. For if we shall 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 show 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 inferior, makes them mad, so doth treachery against them that are superior 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 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 currant of the laws that are published, especially seeing we have observed the error of the best Historian of those 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's affirmed by some of those ancient Writers, that the Duke or King would have brought in the customs of Norwey, but the earnest mediation of the English prevailed against it; and it evinceth two things to my opinion: first, that there was question made what law should be established. Secondly, that notwithstanding the interest that the Normans had in the Kingdom, they could not prevail to bring in the whole body of their law, or of the customs of Norwey, which were not only the prima materia of their law, but also in kind had a settling 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 settled, and that not the law of the Conquerors 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 Saxon law; it was long ere it stirred, and sprang up too late to raise the title of conquest; and withered too soon to settle it.  
As touching the change of customs (for that also is imputed to the Conqueror) 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 Conqueror took away the custom of Gavell kind, and brought the custom of descent to the eldest son; and that Kent saved their liberties and continued this custom of Gavell 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 mere conceit: For (besides what hath been already said concerning that custom of Gavell kind) if we believe Glanvile, the difference was between Lands holden by Knight's service, 
Lib. 7. cap. 3.  and in socage: the first of which in his time 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 Gavell 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 Gavell 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 public.  
Nor is it clear from any Author of credit, that the Normans changed the tenors 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, tenors were like as the services were, all at the will of the donor; and were of as many individuals almost as the minds of the owners; some being of more general regard and public use, 
Littlet.  are recorded amongst the grounds of English laws; 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 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 far differed from the nature of a Conqueror, 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 nonsense 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 public affairs in those times, who speaking of the Conqueror saith, That he commended the Confessors laws to his Justices in the same Language wherein they were wont formerly to be written, 
Ingulfus.  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's probable nevertheless, that the laws were in the Norman tongue; and it's no less likely that the plead, 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 public 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 its 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. Add hereunto, that it's not likely but the Conqueror inhibited the use of the English language in all matters of public Record, in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon, more generally in the Latin, but seldom or never in the Norman dialect; and that plead and indictments were entered in like manner in the Latin Tongue (as formerly by an old custom brought in by the Clergy was used) for the Clergy, who had gotten the Key of knowledge and Law into their own custody, laid it up in that Language whereof the Commons had little knowledge, that they might thereby be enforced to depend upon these men for justice, as well as for piety. The Normans therefore either found it too hard to alter the former custom in such cases; or else thought it the wisest way to choose the Latin 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 public affairs, so fare 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 blood prevailed in the head, and the Language continued possession, mixed only with some Norman words, as the people were also a mixed people. So as the Language was changed, though it was altered.  
Lastly, it's affirmed that the Normans did impose a new custom called Coverfeu; and its thought by some to be a mere vassalage, that every man at the noise of the Bell every night must put out both fire and Candle; and yet is a matter of so small concernment, that (of being in its own nature convenient) Scotland received it without such coercion; and can be reputed for no other 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 alleged 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's 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 complete 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, Tenors, Language, and some customs, we come to that which is the main occasion of all these complaints, I mean unlawful Taxes, afforstinges, and other such oppressions upon the estates of the people: concerning which I purpose not to contend, for much thereof is like to be true: the Norman Kings (especially the two Williams) being under continual occasion of expense, many wars, more provocations, which kept them ever in action, and that wrought their spirits into an immoderate heat, little inferior unto rage; and so they might soon outreach their bounds, and sit heavy on the people; and in such occasions no man escaped, Norman nor English, Clergyman nor Layman; nor did the Kings themselves come off such gainers, but that they might sometimes put up their get 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 Conqueror, who certainly was a man of a serious regard, and did not only remit sometimes his rigour in exacting where he ought not, but also forbore to require that which he had some colour to demand: for whereas the Daneguelt was left unto him in the nature of an annuity, he was contented to turn it into a sum in gross, and to demand it only 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 sovereignty to their successors then to hold by infirmity. And thus the Government under the Normans at the worst was but like that of childhood, following sudden and present desires; not wise enough to plot for absolute Monarchy, nor to 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 notwithstanding the words Conqueror 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; only 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 disposition in government.  
I Have cut out this portion of one hundred twenty and five years (containing the reigns of these Kings) apart from their successors, 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. Only King Steven 
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 Emperor 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 swore fealty as to the next successor in the Throne after the decease of her father, being led thereto by the instigation of her father, whose conscience told him that the Title to the Crown by inheritance was weakened 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 Soldier, 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 undertake; and a Brother, a Bishop and Legate to the Pops here in England; one who was of a high spirit, and vast power; advantages enough to have quickened a much duller spirit than his was, who was the son of a daughter to William the Conqueror; 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 subject's liberties was to be shipped. Thus provided, Steven stepped up to the English Throne, and with protestations of good government entered and made up the match both for Crown and Sceptre, the people waving the title both of Empress 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 recompense 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 settled in the Throne.  
Quietly, said I? that I must retract; for he never had quiet during his life, though generally was victorious, and did as much as a King could do that had the passions of a man and Soldier, to give the subjects content. The true cause whereof was an error 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 then 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 Clergy and Baron's liberty to build and hold Castles for their private security: the issue whereof may mind, that too much countersecurity from the King to the people is like so many Covenants in marriage, that make room for jealousy, and are but seeds of an unquiet life; and thus it befell 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 Empresses choler on the other side, and therefore might make the first assault; and the King's first success therein falling out prosperously for him, conceited him 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 Clergy are loath to forgo their pawn till they had their full bargain, (for now they were working hard for investures of the Mitred Clergy 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 atchivement the King was taken prisoner. The Empress betakes herself to the Clergy, and by the Legates means procures a kind of election to be Queen; but she sick of the woman's 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, choked her own title by prerogative, and so let the Crown slip through her 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 Clergy, tossed by tempests for a time, and at length falling, gave way to the Crown to have its free course to the Empresses 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 settling of the liberties of the people; for the subjects were tired with the unquiet former times, and the Clergy 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 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 mother's 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 its never seen that any man is honoured by God with many advantages, without proportionable employment for the same; so it befell with this King; His great Territories in France brought jealousy in the rear; and it 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 himself (if not guilty of Beckets death) more the conceit of fame then 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's often seen that the most generous spirits are sooner quelled with shame and grief, then with fear of any danger whatsoever. Towards his Lay-subjects he was more regardant for the settling of Laws, and executing of justice, so as some have thought him the first womb of our English laws; others more truly the first Maecenas since the conquest that brought on the spring time of a settled Commonweal, and thereof left this fair testimony by his putting forth that Primrose of English laws, under the name of Glanvill, letting all men know that thenceforth England would no more vale 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 shown 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 soldier in gathering money, and soldiers somewhat out of the road way of an English King, 
Hoveden. 348.  and led an ill example to future ages: nor had he other salve for this wound, but that it was for the honour of Christian faith, and for the sake of Jerusalem.  
Next comes in Richard the first, 
Richard the first.  Henry the seconds son both in birth and courage; 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 father's life time, and the same confirmed by receiving of homage from the Peers. 
M. Paris.  The sad troubles that this election amongst other things occasioned to his father in his old age show plainly that Richard trusted not to the title of inheritance; 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, that must secure the government to the son when the father is dead: and thus is he entered 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 an other 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 stuck close to him in his absence, not only in maintenance of his right to the Crown (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 downfall here in England. The King comes like the Sun rising, scattering his brother's 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 father's Hearse) 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 beginning.  
Next comes in King John 
John.  to act his part 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 woeful experience obtained amongst the Lords, or some or all concurring; its 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 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 Ahimelech in English, wherein the Cedar was rooted up, and the Bramble trodden down.  
The general temper of his government showeth that though the King must be thought sober, yet the man was mad; for he hauked 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 cuffed and plumed, he was feign to yoke his lawless will under the grand charter, depose his Crown at the Pope's foot, and instead of a King became little better than a chief Lord in England. Thus although Richard the first forgot this man's disloyalty, yet God remembered it: for the King having gotten the Pope upon the hip, and put him to his last shift to stir up the French to set his curse on work was by an hidden providence conquered in the midst of a Royal Army, without view of enemy, or other weapon than a mere 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 Pope's curse, and the Lords themselves with the French men's power: thus the tables are turned, and the French playing an aftergame 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's 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 Clergy and the Laity, which coming nigh unto the push of the 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 successlesse labour was glad to give and take breath, 
M. Paris An. 1215.  confirmed the liberties of the people by his Charter, which is now called the Magna charta 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 redisseisin; a desperate remedy for a desperate condition, wherein the Commonweal than lay between life and death upon the rack of the will of a King that would be controlled 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 cheer and safety to the people: after that royalty sprung up, the influence thereof upon them exhaled such a reciprocal interest bacl again as made them less regardful of their own root. Whereas we see the more mature flowers are the more propences 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 Country, obtained by custom such command and power amongst the meaner sort, being soldiers under them in time of the service in the field; that when the wars had breathed out their last, neither of them could forget or were very careful to lay aside. This was observed by Kings, and advantage espied 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 wherein they had prevailed much more than they did, if they had been wise enough to have maintained them in unity; but in that failing, Kings were necessitated to take parties, and serve the Nobility to save the 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 error of Kings was soon espied, but could not be avoided; its 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 overtop 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 show but one Office, yet in these times was in nature of the King's 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; 
Hoveden. 443, 375. Nubr. lib. 4. cap. 14.  and yet in those times you shall meet with one man made up of an Archbishop, a Legate, and chief Justice of England; or a Bishop, a Lord Chancellor, a Legate, 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 was, as the times than were, was capable of. By these and such like pluralities the great men of England kept the Commons below and themselves above, and probably rendered the temper of the government of this kingdom more Aristocratical then in after ages. And if their personal authority was of such value, how much rather in their joint 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 concernment to the State, not only to serve as eyes to foresee, but to provide also if they can, or otherwise to call in the aid of the people's advice; so also they continued this course, and it may be now and then (as all Counsels 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 Judgements in particular cases, such as are the constitutions at Clarindon in Henry the seconds time) and many other Laws which are reported to be made between the King and his Lords. Nor can I look upon such laws otherwise then as upon judgements in Courts of Justice in new points of controversy, 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 Judgements; the word Statute being of later times taken up and used in a more restrictive sense, of which more in their due place. Now that this Court was a settled Court of judicature, 
Hoveden. An. 1175.  and so used, may appear in that fines were levied therein, and Writs of right determined; as in that great case between the two Kings of Navarr and Castille, 
Ibid.  referred to the judgement of Henry the second, and tried in this Court; it's said that the trial was by plea, and if need whereby battle. The Judges in this Court were the Baronage of England; for the entry of judgement in that great case is thus, Comites & Barones Regalis Curiae Angliae adjudicaverunt, etc. 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 Precedent over all the rest was the chief Justice, or if the King were present then himself; and by him was the sentence or judgement declared, according to the entry in the case aforesaid, Habito Concilio cum Episcopis, Comitibus & Baronibus adjudicavimus etc. 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 Counsels, which weakened 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 King's 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 Clergy, 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 Clergy took up the Bucklers 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 Bondservant; 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 Churchman's 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; where on the Kings part it was first broken. All this the King saw full well; and therefore what can he deny to such benefactors? Vacances of Churches he readily parts with; and his right of investure of the Mitred Clergy he dispensed: so as he opened the way to his successors of an utter dereliction of that privilege. 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's his enough: But the Clergy, like the barren womb hath not yet enough. The King hath allowed them Castles, and too late he sees that instead of being defencas 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 Precedent: 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 eagle's 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 Clergy, 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, Stevens brother leading the game; and had she been as willing to have admitted of the Laws as Steven was, she had so continued, and had left a strange precedent in the English government for posterity. But the Citizens of London, who had made the way to the Throne for Steven, reduced the Synod to sober consideration, and helped the kings return unto his Throne again, wherein he continued a friend to the Clergy during the rest of his time.  
Henry the second succeeded him; as brave a man as he, but beyond him in title and power, and one that came to the Crown without preingagement by promise or Covenant, saving that which was proper for a King. A man he was that knew full well the interests in the government, the growing power of the Clergy, and the advantages lost from the Crown by his predecessor: and to regain these he smooths his way towards these braving men, speaks fair, proffers fair; 
M. Paris: An. 1155.  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 then obtained. This was the 2d example of a King of England, but the first of an English king that sought to Rome for right in the Crown; and thereby taught the Pope to demand it as a privilege belonging to the Triple crown. Nor was Henry the second less benign to the Churchmen, 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 Clergy, who formerly scorned to stoop to the greatest Potentate on Earth. The state of Kings is to be pitied, who must maintain a politic affection above, and sometimes against nature it self, 
Constit. at Clarindon.  if they will escape the note of tyranny in their undertake, and of a feeble spirit in their sufferings: For the King having made Becket Chancellor of England, & then Archbishop of Canterbury, he became so great that his feathers brushed against the King's Crown, who gins to rouse up himself to maintain his honour and prerogative Royal. The Bishop's 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 Bishop's sign 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 show the prevailing humour that then overspread the body of the Clergy in those days, and therefore I shall sum them up as follows:  

cap. 1.  Rights of Advousons' shall be determined in the King's Court.  
This had been quarrelled from the first Normans time, but could never be recovered by the Clergy. Before the Normans time the County courts had them, and there they were determined before the Bishop and Sheriff; but the Ecclesiastical causes being reduced to Ecclesiastical Courts, and the Sheriff & the Laity sequestered from intermeddling: the Normans according to the custom in their own Country, reduced also the trial of rights of Advousons' 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.  

cap. 2.  Rights of Tithes of a Lay fee, or where the tenure is in question belong to the King's court.  
Pleas of debts by trothplight belong to the King's Court. 
cap. 3.   
These were Saxon Laws, and do intimate that it was the endeavour of the Clergy to get the sole cognisance of Tithes, because they were originally their deuce; and of the debts by trothplight, because that oaths seemed to relate much to Religion, whereof they held themselves the only professors.  
The King's Justice shall reform errourrs of Ecclesiastical Courts and Crimes of Ecclesiastical person. 
cap. 4.   
Appeals shall be from Archdeacon's Courts to the Bishop's Courts and thence to the Archbishop's courts, 
cap. 5.  and thence to the King's court, and there the sentence to be final.  
No man that ever was acquainted with antiquity will question that these were received Laws in the Saxons time; 
Constit. at Clarindon.  nor did the Clergy ever quarrel them till the Normans taught them by courtesy done to Rome to expect more from Kings then for the present they would grant, whereof see Cap. 47. But King Steven that was indebted to the Clergy for his Crown, and could not otherwise content them, parted with this Jewel of supreme power in causes Ecclesiastical to the Roman cognisance, as hath been already noted; but Henry the second would none of this cheat at so easy a rate. This strooke so smart a blow, as though the Popedom had but newly recovered out of a paralitique Schism, yet seeing it so mainly concerned the maintenance of the triple Crown) Alexander the Pope having lately been blooded against a brave Emperor, made the less difficulty to stickle with a valiant King; who in 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 Pope's supremacy in spiritual causes is secured both by a recovery and judgement by confession thereupon. 
Constit. at Clarindon.   
The King shall have vacances of Churches, 
cap. 6.  and power to elect by his secret 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 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 public concernment, as the Parliament took cognisance 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 public affairs without advice of the public Council of Lords, which was the only Council of state in former times; and thus the public 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 Stevens time, when as there was little regard of the one or the other: Nor doth it concur with the file of story that it should be inserted within these constitutions, 
Constit. at Clarindon.  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 stooke with the Archbishop for the space of seven years, which was six years after the Constitutions were consented unto, and concluded upon.  

cap. 7.  No Clergy man or other may departed the Realm without the King's licence.  
It's a law of Nations, and must be agreed on all hands, that no reason of state can allow dispensations therein, especially in a 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 licence 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 licence first had of the King, or his chief justice in the King's absence.  
Till the Conquest no Excommunication passed without warrant of Law made by the joint assembly of the Laity and Clergy; but the Conqueror having let lose the Canons, 
Constit. at Clarindon.  and the Clergy having gotten the upper hand in Counsels, made Canons as they pleased, and so the Laity are exposed to the voluntary power of the Canon: 
vid. cap.  only 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 ere he be ware.  
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 suspicion ex officio, although the oath at that time was not borne into the world, and that all this was contrary to the liberty of the Subject, and law of the Land: and it intimates a ground of prohibition in all such cases upon the common law; which also was the ancient course in the Saxons times, as hath been formerly noted.  
Excommunicated persons shall be compelled only to give pledge and not Oath, 
cap. 10.  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 administered 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.  

cap. 11.  Persons cited, 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 to scatter the censure of excommunication according to their own liking. This together with all those that forego, the Archbishop upon his repentance absolutely withstood, all though he had twice consented and once subscribed to them, 
Constit. at Clarindon.  having also received some kind of allowance thereof even from Rome itself.  

cap. 12.  Clergy men holding per Baroniam shall do such services as to their tenure belong, and shall assist in the King's Court till judgement of life or member,  
Two things are hereby manifest: First, that notwithstanding the conquerors law formerly mentioned, Bishops still sat 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 Conqueror extended only to separate the Laity out of the Spiritual Courts, and not the Clergy out of the Lay courts. Secondly, that the Clergy especially those of the greater sort questioned their services due by tenure, as if they intended neither Lord nor King, but the Pope only. Doubtless the use of tenors in those times was of infinite consequence to the peace of the kingdom, and government of these Kings, when as by these principally not only all degrees were untied and made dependant from the Lord paramount to the Tenant peravale; but especially the Clergy with the Laity upon the Crown, without which a strange metamorphosis in government must needs have ensued, beyond the shape of any reasonable conceit, the one 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 with out Licence. 
Constit. at Clarindon. cap. 15.   
It was an ancient Law of the Saxons, that no Tenements holden by service could be aliened without licence or consent of the Lord, because of the Allegiance between Lord and Tenant: Now there was no question but that Churches might lie in Tenure as well as other Tenements; but the strife was by the Churchmen, to hold their Tenements free from all humane service, which the King withstood.  
Sons of the Laity shall not be admitted into Monastery without the Lords consent. 
cap. 16.   
Upon the same ground with the former: for the Lord had not only right in his tenant, which could not be aliened without his consent, but also a right in his tenants children, in regard they in time might by descent become his tenants, & so lie under the same ground of law: for although this be no alienation by 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 than 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 Samson 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 their Archbishop, 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 triple Crown at the best but double. 
Antiq. Brit. 302. F xe. An. 1179.  Alexander the Pope therefore meaned not to trust their fair natures any longer; but puts an oath upon every English Bishop, to take before their consecration, whereby he became bound 

1. To absolute allegiance to the Pope and Romish Church.  
2. Not to further by deed or consent any prejudice to them.  
3. To conceal their counsels.  
4. To aid the Roman papacy against all persons.  
5. To assist the Roman Legate.  
6. To come to Synods upon Summons.  
7. To visit Rome once every three years.  
8. Not to sell any part of their Bishopric 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: And well it was that it was not worse, 
M. Paris An. 1167.  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; and so he let the King come off with the loss of appeals, 
Baronus Anal. 1164. Sec. 11.  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 to the scarecrow power of Rome: yet it befell him as many great spirits that favour prevails more with them then 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 Legate unto him won that which the Clergy could never formerly wrest from him in these particulars granted by him: 
M. Paris An. 1176.  That  
No Clerk shall answer in the Lay courts, but only for the forest, and their Lay fee.  
This savoured more of courtesy 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.  
Vacances shall not be holden in the King's hand above one 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.  
Killers of Clerks convicted shall be punished in the Bishop's 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 murders. To prevent this evil the King loath to enter the List with the Clergy about too many matters, let lose the law of feud for the friends of the party slain to take revenge; and this cost the blood of many Clerks: the Laity haply, being more industrious therein then 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 blood.  
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 Clergy laid aside, as resolving rather to adventure their own blood, then 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 Clerkslayers, they are feign to have recourse to their ancient privilege.  
Hitherto therefore its manifest the Clergy were in their growing condition, notwithstanding the policy and power of Henry the second, who was the paragon of that age.  
After him reigned Richard the first, that must expiate his disobedience to his father by obedience to his ghostly father the Pope in undertaking the holy war; and being gone, left the government in his absence so deeply entrusted 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 being drunken with vanity, and spewed out his own shame. However the success was, it was not contrary to the principles of those times: for Richard had experience in the Emperor Frederick and his father's example, that the Pope & Clergy were too hard for all the Potentates in Europe, and therefore might most safely trust them with all he had at home, whiles he was in their service abroad. Nor were they short of what was entrusted to them, but stook close for the maintenance of his right to the Crown, and emptied themselves even to the very consecrated Vessels, and procured the Laity of all sorts to 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 achievements 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 heigthned 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 Legates knee, and his Crown at the Pope's foot; leaving an example to posterity to beware of striving with the Clergy.  
If then these sparks of ambition were so virulent being alone, certainly in their joint 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 seconds 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 Archdeacon of Bath about those times, in his Epistle to the Archbishop 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, etc. and if the Historian doth not mistake; the proceed against that sect being only for errors in Religion, was in a Council of Bishops and Lords. Nevertheless, whether present or absent the Laity sat there as cyphers, making the number great, but not valuable by themselves. For even in the Norman times they were brought so low as the constitution made by the Clergy wrought more upon them then civility itself can work upon professors of Religion in these days. 
M. West. 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 titles 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 outlaries should pass in certain particular cases, as in the constitutions of Archbishop Anselme may appear. Afterwards in these King's times they flew at the throat of the government, got all places of honour, or profit, or power, whether for peace or war under their gripe; 
Antiq. Brit. 150. ibid. 155.  deposed and advanced as they pleased, even to the Royal Throne itself; and that not only out of a sudden passion of State, but advisedly concluded it for a maxim, that the election of the King belonged to them as in the case of the election of Maude the Empress they did hold forth to all the world, 
Ibid. 127.  and in which the King also then flattered them, as holding their election so necessary that he kept the whole Synod in duresse to have their votes for the election of his son to be his successor.   

CHAP. LX. Of the English Commonalty since the Normans time.  
THe dignity of the English Crown thus deflowered 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 than stood in the Christian world the Politician's 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, & prevailed to have the greatest share in all, not now by the favour either of great or small, but by a pretended divine right, through which they now had gotten to their full pitch of Lordship in the consciences of men. It must be acknowledged that this was a distemper in government; yet such it was as kept humours low and restrained the inordinate excesses that in all kinds of government are subject to break forth; so as neither King, nor Lords, nor people could swell into larger proportion than would suit with the ends of the Churchmen. But to mind the matter in hand: somewhat the Commons gained in these stormy times: The taxes that they were charged with were rather persuaded then imposed upon them; and generally they were sparing in that work; and it's noted for the honour of King Steven, that though he was seldom without war, yet he not only never charged the people with any tax, but released that of Daneguelt and acquitted the subject for ever of that tax, which former Kings challenged as their right; all which show 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 Clergymen then his. Richard was yet a greater burden: 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 governor's (except the Archbishop of Canterbury) and was unsuccesful in most of his undertake: yet never invaded the liberties of the Commons by any face of prerogative. But what wanted in him was made complete and running over in his successor John, who (to speak in the most moderate sense of his government) being given over to himself when he was not himself, rob the Lords of their authority, bereft the Church of its rights, trodden 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 precedent 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 only 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 Commonweal. 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 Glanvile in Henry the seconds time; and for the latter to King john, or rather the Barons in his time in the publishing of the grand Charter, or an enumeration of the liberties or customs 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 repent of his oath (the bond of his consent) and to heal the wound, got the Pope's pardon and blessing thereupon: so easy a thing it was for a son of the Roman Church to pass for a good catholic 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 & 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, etc. 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 supreme 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 causes still. And because that which concerned the public treasure was of more public regard then 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's clear to me that it was before Henry the seconds time, as well because Henry the first had his Judex fiscalis, 
Ll. Hen. 1. c 24.  as Glanvile so frequently toucheth upon the 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, reciteth some to be of the common pleas; 
Hoveden.  which showeth 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 only 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 to the King as it was burdensome to the people. Other Judges there were which were chosen for their learning and experience, most of them being of the Clergy, as were also the under Officers of those courts; for those times were Rome's hour and the power of darkness.  
Other Courts also were in the country, and were Vicontiel or Cours of Sheriffs and Lords of Hundreds and corporations, and Lordships, as formerly; and these were settled in some place; 
Hoveden.  but others there were which werr itinerant, over which certain Judges presided, which were elected by the grand council of Lords, 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 than 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 redivided 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 which the King made Justices of the Common pleas throughout the Kingdom. 
Hoveden. 337. 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; 
Hoved. An. 1184.  for within that time Ralph Glanvile 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, 
Co. jurisd. c. 33  that this Itinerary judicature was settled to hold every seven years; 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 cognisance of all causes both concerning the Crown and common pleas; and amongst those of the Crown this only I shall note that all manner of falsehood was inquirable by those Judges which after came to be much invaded by the Clergy. 
Hoveden. Glanvil. l. 14. c. 7.   
I shall say no more of this, but that in their original these Iters were little other than visitations of the Country by the grand Council of Lords. Nor shall I add any thing concerning the Vicontiel courts and other inferior but what I find in Glanvile: that though robbery belonged to the King's court, 
Glanv. lib. 1. cap. 2.  yet thefts belonged to the Sheriff's Court; and (if the Lord's court intercepts not) all batteries and wound, unless in the complaint they be charged to be done contra pacem Domini Regis: the like also of inferior trespasses, 
Idem lib. 9 & 10.  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 only a few as well touching matters of the Crown as of property being desirous to observe the changes of Law with the times, and the manner of the growth thereof to that pitch which in these times it hath attained.  
We cannot find in any story that the Saxon Church was infested with any Heresy from their first entrance till this present generation. The first and last Heresy 
1. Heresy.  that ever troubled this Island was inbred by Pelagius; but that was amongst the Britons, 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 then for the foulness of the opinion. The Saxon church leavened from Rome for the space of above five hundred years held on its course without any intermission by cross doctrine springing up, 
Hoved. 585.  till the time of Henry the second. Then entered a sect whom they called Publicans; but were the Albigenses, 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 precedent of punishing Heresy in this Kingdom unders the name of this Sect, whom he caused to be brought before a council of Bishops, 
Nubrig. l. 2. cap. 13.  who endeavoured to convince them of their error; but failing therein they pronounced them Heretics, and delivered them over to the Lay power; by which means they were branded in the forehead, whipped, and exposed to extremity of the cold (according to the decree of the Church) died. 
Decret Papae Alexand. Hoveden. 585.  This was the manner and punishment of Heretics in this Kingdom in those days; albeit it seemeth they were then decreed to be burnt in other countries, if that relation of Cogshall be true which Picardus noteth upon the 13 chapter of the History of William of Newberry, out of which I have inserted this relation.  
Another case we meet with in Henry the seconds time concerning Apostasy, 
2. Apostasy. Bracton, lib. 3. cap. 9  which was a crime that as it seems died as soon as it was born; for besides that one we find not 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 Apostasy punished with death, and Heresy with a punishment that proved mortal; and the manner of conviction of both by a council of the Clergy, 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 Clergy, however brave the King was against all his enemies in the field.  
Treason 
3. Treason.  was anciently used only as a crime of breach of trust or fealty, as hath been already noted; now it grows into a sadder temper, and is made all one with that of laesa Majestas; and that Majesty that now a days is wrapped up wholly in the person of the King, was in Henry the seconds time imparted to the King and Kingdom, as in the first times it was more related to the Kingdom: And therefore Glanvile in his book of laws, speaking of the wound of Majesty, exemplifies sedition and destruction of the Kingdom to be in equal degree a 
Lib. 1. cap. 2.  wound of Majesty, 
Lib. 10. cap. 1.  with the destruction of the person of the King: and then he nameth sedition in the Army, and fraudulent conversion of Treasure trove, which properly belongs to the King, All which he saith are punished with death and forfeiture of estate, and corruption of blood; for so I take the meaning of the words in relation to what ensueth.  
Felonies, 
4. Felonies.  of Manslaughter, Burning, Robbery, Ravishment, and Fausonry are to be punished with loss of member and estate.  
This was the law derived from the Normans, and accordingly was the direction in the charge given to the Justice's itinerant in Henry the seconds time, as appeareth in Hoveden. But treason or treachery against the oath, fealty, 
Ll. Hen. 1. c. 25.  or bond of allegiance, as of the servants against the Lord was punished with certain and with painful deaths: and therefore though the murder of the King was treason, yet the murder 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, 
Glanvil. lib. 7. cap. 17.  was to the Sheriff of the County, unto whose cognisance the case did belong; and the land went to the Lord immediately, and not to the King. But in all cases of Felony, & of the 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 only of chattels and goods but also of lands, etc. extended to Outlaries (I conceive in case of Felony) and the King's pardon in such case could not bind the Lords right of escheat; although it might discharge the goods, and the year and the day whereunto the King was entitled; which case alone sufficiently declareth what power Kings had in the estates of their subjects.  
Manslaughter 
5. Manslaughter.  made not bailable.  
This was law in Henry the seconds time, although it crossed the Norman Law; 
Glanvil. l. 14. cap. 1 & 3.  and questionless it was upon good ground: for the times now were not as those in the conquerors times, when shedding of blood was accounted valour; and in most cases in order to the public 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.  
Robbers 
6. Robbery.  shall be committed to the Sheriff, or in his absence to the next Castelane, who shall deliver him to the Sheriff. And the Justices shall do right to them, and unto trespassers upon Land.  

Ll. Gul. 4. Spicil. 174.  By the conquerors law these offenders were bailable, and I conceive this was no repeal thereof; and the rather because Glanvile alloweth of pledges in all cases (except Manslaughter) yea in those crimes that did wound Majesty itself, 
Glanvil. lib. 14. cap. 1.  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 Justice's 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.  
Fauxonry 
7. Fauxonry. Glanvil. lib. 14 cap. 7.  is of several degrees or kinds: some against the King, others against other men; and of those against the King some are punished as wounds of Majesty, as falsifying the King's charter: and whether falsifying of money were in that condition or not I leave, or falsifying of measures, yet more inferior I cannot determine; but its clear by Glanvile 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.  

8. Glanvil. lib. 7. cap. 1. Ibid. c. 5.  Inheritances were in those times of lands or goods; for it was the custom then 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 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 life time, 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, than 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 Knight-service always descended to the heir; but such as were holden in soccage 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 times hitherto, 
Ll. Hen 1. c. 88  seeming somewhat too straight 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 ruin of many of their families who now engrafted 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 public dangers; and partly because by their friends and allies they bring more aid unto the public, 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 seism as 
9  his ancester had at the time of his death, 
Vide Glanv. l. 7. c, 9  doing service and paying relief; and shall have his chattailes.  
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 withhold 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 trial of the heirs 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 disseise 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 as hold by soccage 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 cloth, and the like: yet doth not Glanvile or any other say that these were their full age to all purposes; albeit that some Burroughs at this day hold the last in 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 tried by twelve men. This trial some have thought to be of glanvil's invention; and it may well be that this trial 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 its past question; but that the trial 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 only 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.  
The Justices shall by Assize try disseisins done since the Kings 
10.  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 Justice's sake, who now were appointed to that work, which formerly belonged to the County courts; 
Glanv. lib. 13. cap. 33.  and to prevent intrenchments of Courts, a limitation was determined, although the copy seemeth to be mistaken, for the limitation in the writ is from the King's last voyage, or going into Normandy.  
Justice's shall do right upon the Kings writ for half a 
11.  Knight's fee, and under, unless in cases of difficulty, which are to be referred to the King.  
The Justice's itinerant ended the smaller matters in their circuits, the other were reserved to the King in his bench.  
Justice's shall inquire of Escheates, Lands, Churches, and 
12.  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 Castleguard, it was a tenure in great use in these bloody times, and yet it seemeth they used to take rend 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 own 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 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 perform service to the Lord, 
Glanv. lib. 9 cap. 4.  and the Lord undertook protection of the tenant in his right to that tenement. The service was first by promise solemnly bound, either by oath which the Lord or his deputy by the common law hath power to administer; as in the case of fealty, in which the tenant bound himself to be true to the honour and safety of his Lord's person, and to perform the service due to the Lord for the tenement so given: or otherwise by the tenants humble acknowledgement, and promise not 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 to 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 compliment, albeit there be difference in the adjuncts belonging to each. For though it be true that by promise of being the Lords 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 soccage, although the tenant be bound to homage, yet that homage ties not the tenant to the service of a Knight; 
Lit. lib. 2. cap. 5  nor contrarily doth the homage of a tenant in Knight service tie him to that of socage upon the command of his Lord, though he professeth 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, 
Glanv. 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; but all other Lords receive homage of such tenant with a saving of the tenants faith made to other Lords and to the King, who in order to the public 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 he need not question the point of forfeiture; 
Glanvil. lib. 9 cap. 1.  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 allegiancc to that Lord, yet with a salvo of his fealty to that other Lord. 
Ibid. cap. 4.  But in all ordinary cases tenants and Lords must have regard to their stipulation, for otherwise if either 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 thence forth disclaim, and hold over for ever. Nevertheless the Lords had two privileges by common custom belonging to their tenors, 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 Paramont; which in my opinion sounds as much as if the tenants were bound by their tenors to aid their Lord in all cases of extraordinary charge (saving that the Lord could not distrain his tenant for aid to his war) and this according to the Lords discretion; 
Ibid.  for Glanvile 
Glanv. l. 9 c. 8,  saith that the law determined nothing concerning the quantity or 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 Lord's favour in conferring that tenement; 
Ibid.  and it was first settled in the Saxons time. The Lord's privilege of power extended so fare 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 privilege of the Lords power was over the tenant's heir after the tenant's death, in the disposing of the body during the minority and marriage of the same. As touching the disposing of the body, the Lord either retained the same in his own power, 
Glanv. 7.10.  or committed the same to others; and this was done either pleno jure, or rendering an account. 
Ibid. c. 12.  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 parent's death without the same; and the Lords are bound to give their consent, unless they can show 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 massy 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 cetero observetur. And therefore nothing was more ordinary then for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. 
M. Paris An. 1216. Hoveden. An. 1199. Malmsb. nov. l. 1. Malmsb. l. 3.  Thus King John appointed Henry the third his successor, and Richard the first devised the Crown to King John; and Henry the first gave all his lands to his daughter; and William the Conqueror by his last will gave Normandy to Robert, England to William; and to Henry his mother's lands. If then things of greatest moment under Heaven were ordinarily disposed by the last Will, was it then probable that the smaller free holds should be of too high esteem to be credited to such conveyances? I would not be mistaken, as if I thought that Crowns and Empires were at the 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 patronise 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 Glanvile concerning this point, and I cannot find that he positively denieth all conveyance of land by Will, but only in case of disherison; the ground whereof is, because its contrary to the conveyance of the law: and yet in that case also alloweth of a disposing power by consent of the 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 devise of lands were incident to the tenure in Gavell kind, and that so general in old time, as also to the burgages tenors, 
Ll. Gulielm. cap. 61.  which were the rules of Corporation and Cities, Vbi leges Angliae deperiri non possunt nec defraudari nec violari, how can it be said contrary to the common law? And therefore those conveyances of lands by last will that were in and after these times holden in use; seem to me rather remnants of the more general custom, wasted by positive laws then particular customs growing up against the common rule. It's true that the Clergy put a power into the Pope to alter the law, 
M. Paris An. 1181. Hoved An. 1181. Decret. Alex. pap. Hoveden. fo. 587.  as touching themselves in some cases: for Roger Archbishop of York procured a faculty from the Pope to ordain that no Ecclesiastical persons Will should be good unless made in health, and not lying in extremity; and that in such cases the Archbishop should possess himself of all such party's goods: but as it lasted not long, so was himself made a precedent in the case; for being overtaken with death ere he was provided, he made his will in his sickness, and Henry the second possessed himself of his estate. And it's as true that Femme coverts in these days could make no will of their reasonable part, 
Glanv. l. 7. cap. 5 & 16.  because by the Saxon law it belonged jointly to the children. Nor could usurers 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 conquerors time; for by the Saxon law they were reputed as outlaws. Nevertheless all these do but strengthen the general rule, 
Ll. Edw. 37.  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, than the lands passed by descent, and the goods held course according to the Saxon law, 
Glanv. l. 7. c. 6. cap. 8.  viz. the next kinsmen and friends of the intestate did administer, and as administrators, they might sue by Writ out of the King's 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 cognisance of the great council, so fare as to agree or disavow the war, if they saw cause; as appeared in the defections 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 virtue 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 extreme prejudice, and the Kingdom's 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 King's aims in reference to the public, which happiness it was Henry the seconds lot to enjoy; for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate, not only gained honour abroad, but much more amongst his own people at home, who saw plainly that he was for foreign employment of honour to the Kingdom; and not only contented with what he had in England, but embarked together with the Laity against the growing power of the Clergy, for the defence and honour of the privileges of the Crown, wherein also the liberties of the people were included: They therefore were secure in the King's 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 Tenors 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 Knight's 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 inferior 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 King's 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 King's 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 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 foreign 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 paralleled it: but the King's mean submission to the Pope's Legate so distasted the Nobles and people, as they left him to his own shifts; and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthened 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 itself was honourable, yet lost the King so much the more, because it was rather gained from him then made by him.   

CHAP. LXIV. Of the Government of Henry the third, Edward the first, and Edward the second, Kings of England. And first a 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 breathe 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 enterprise of oppression that occasioned the first Barons bloody 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 engendered 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 fathers own spirit had entered into him, and animated him in all his ways. He brought in with him the first precedent 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 complete 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 precedent 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, 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 council, and by it purged out all the ill humours that the kingdom had contracted in the rash distempers of his father's government: Nor did he only 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. 
M. Paris An. 1223.  And yet two things troubled much those times: one that they were times of parties; the other, that the Protector was somewhat too excellent to be a mere servant; and its hard for the English Nobility to endure him to be greater; although it may seem reasonable that they that are thought worthy to 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 rendered up into the King's hands. 
M. Paris. An. 1223, 1224.  This proved the rock of offence, whiles some obeyed the Pope, and were impugners of those that put more confidence in the Castles then in the King's good nature. Hence first sprang a civil broil, thence want of money, than a Parliament; wherein the grand charter of England's 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 Councillors, 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 Councillors, which served him with ill advice, that the grand Charter would keep him down, make him continually poor, and in state of pupilage: 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 blood had been settled; and that he might do this without check of conscience, he forbade 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 strength) brought in foreigners and foreign Counsels; and then all was at a stand. The Counsels were for new ways. The great design was to get money to supply the King's wants; and as great a design was to keep the King in want: otherwise it had been easy for those at the helm to have stopped the concourse of foreigners (other than themselves) from abroad; the confluence of the Queen's 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 the people absolutely deny supplies. Then the King pretends wars in France, wars in Scotland, and wars against the Infidels in the Holyland, whither he is going: the people upon such grounds give him aids; but finding all but pretences, or ill success of such enterprises, they are hardened 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.  

M. Paris. An. 1253.  It was done in full Parliament, 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 cheerly countenance, holding his open hand upon his breast, 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 Anathematise, 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 council, 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 Counsels, 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 smoking, 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 anoinied.  
If we shall pair 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 in writing under seal, preserved to posterity; vindicated by God himself in the ruin of so many opposers. And yet the dust of time hath almost buried this out of the thoughts of men; so as few even of such as know it do seriously consider how far it may yet and even now be charged upon the account of this Nation. Serious as it was, it was soon forgotten: nor would the King be long holden with promises, some unhappy Star strooke him in his birth; he had been too hard for his promises, and now having the Pope at his elbow, he can dispense with his oath, and bid defiance to an execration; and in flat defiance of the grand Charter professeth oppression, accumulates foreign Councillors, and foreign 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 publque poverty, and that a Parliament that brought forth a bloody 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 blood stepped into their places and Revenues. But this was not all, the King must confirm the grand Charter, and thereto he addeth not only 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, 
Dan.  and invest the Barons both with Sword and Sceptre, 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 dressed and girt for the space of four or five years (whatsoever he thought all the while it's no matter) he began first to stretch his conscience, and having the Pope's dispensation to help, soon makes his oath to fly asunder (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 Kings own grant. Liceat omnibus in regno nostro contra nos insurgere & ad gravamen nostrum opem & operam dare ac si nobis in nullo tenerentur; 
Dan. An. 1258.  and the Lords maintained their hold, though not without some jealousies amongst themselves; & it's very probable had the King been a little longer breathed with patience, he might have had his will upon easier terms: for the Lords were not so jealous of one another as the Commons were jealous of the Lords, that they meaned to rule only for themselves. But the King being now in a wood, and bemired, so as he must now resolve to get all, or lose all, and so either sacrifice his natural desires, or the remainder of his politic power, entered 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 fare, 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 in the issue: this made victory follow the King a fare off, and taught the King that the end of civil war must be attended with moderation in the Conqueror, so fare as may stand with public safety, or otherwise he that is conqueror to day by Sword, may be conquered to morrow by jealousy. 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 bloody sweat may be summed up in two heads: First, that he had liberty to choose his principal Officers of State by advice of the Lords, and them also to displace by like Council. 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 governor betimes.  
For Edward the first being trained up in the Tragedy of a civil war wherein he was one of the chief actors; 
Edw. 1.  and having expiated the bloody 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 than 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 sense of these inconveniences 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 plasters applied to particular botches of those times, wherein the King dealt with a tender hand, as if he feared to ulcerate any part, and especially the Clergy, and therefore delivered the last law in a petitionary way to the Clergy, because it concerned the execution of justice in prohibited times, and yet bound up all with a salvo to himself and his prerogative, like a wise King that would neither lose right, nor do wrong; nor yet stickle to debate with his subjects now when as his eye was upon a further mark. 
Walsing. 46.  For Leolin the Prince of Wales had affronted him; 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: 
M. West. An 1276.  but there was no disputing with power, and therefore the subject must be contented rather to score it up against the future, then require present pay; so dangerous a thing it is for England that Kings should have occasion to gather armies, though for never so honourable employment.  
The Welsh chase is hotly pursued, yet it did not rid much way, for it cost the English a voyage of nine year's travel before they could attain the shore although it had been often within their view. It may be the King 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 breathe, 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 privileges and liberties of his subjects; 
M. West. Polyd. virg.  some authors reciting the complaints of the Church men, others of the Laity: so as it seemeth the King was no respecter of persons, but his own. This and others not unlike had almost occasioned another combuston, had not the meeting at Gloucester settled things for the present, by referring the right of franchises to debate in the Eyer, and ordering reseisure of such liberties into the subject's 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, whiles neither party durst venture bloodshed in touching too nigh upon the privileges of each other; principally because the affairs in Wales were but laid asleep, and upon reviving might turn the balance to either side.  
The wars awake again, and therein are consumed nigh five years more of the King's reign, so as what ever his intent was, he could have hitherto little opportunity to effect any thing for the advancement of the prerogative of the Crown at home. Nor had he scarcely breathed himself and army from the Welsh wars, but he found both France and Scotland his enemies at once. The King faced only the first, and fought the second; which held him work the remainder of his days, & at the same time also he arred both the Clergy and Laity at his own home as if providence had given him security for the good behaviour; and yet it failed him in the issue, and left him to the censure of the world, whether his justice was spontaneous or by necessity; for as yet he held the grand Charter at parley, and therefore was rather eyed then much trusted: Albeit he was put upon confidence in the subjects discretion for aid of him in his continual undertake; 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's 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 angered 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 for war by summons not only of his Knights, but all other that held Land worth 20 li. per annum, 
Walfing. 69.  and taxes imposed by an arbitrary way increased rancour into a kind of state scowl, 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 the 27, 
25 Edw. 1.  28 years of his reign, as if he had utterly renounced all thought of a contrary way; but the Stat. in his 28th year had a sting in the tail that was as ill as his saving of ancient aid and prisals which was in the Stat. of confirmation of the Charters, though it were omitted in this Stat. for the saving was of such a sense 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 intent 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 terror of those that had stopped the broad way of his extravigant 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 Clergy, and the dread of the Pope's direful thunderbolt. 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 hide 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 only 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. 
Edw. 2.   
His son Edward should have completed it, but that he wanted his father's sense, and had too much of his grandfathers superbient humour, that meeting with a stiff spirit, and a weak mind brought sudden fire into the course of government till it consumed itself in its own flame. For this King having newly slipped 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 later time upon revengeful anger, little inferior 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; merely for some personal endowments. It shows 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 borne as soon as they are conceived, and speak as soon as they are borne. It's true that bravery of Spirit may 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 common weal or monument of Parliament, saving two Ordinances made by the King and such Lords as suited 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 royalize 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 wain, & 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 counsels prevail; this was bred in the blood, fed with blood, and ended in blood. Through the glass of foreign Counsels all things seem of foreign colour; the King to the people, and the people to him. The King at length gins to see himself undervalved, 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 caresse the Commons made the Statute de vice-committibus, 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 only prepared them for better times. For the King's time of longing, again is come, and he must have new playfellows; 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 Essoines; Attaints of Jurors, Levying of fines; and Estreates into the Exchequer, etc. all of them promising good government. The Barons nevertheless like not the Spencer's greatness, and being by several occasions exasperated, join in one, and occasion a new war; the King aided by the Commons (who yet thought better of the King then of the Barons, whom they saw prejudiced rather out of selfe-apprehensions, than the public good) prevailed against the Barons, and made them the first precedent of death upon the Scaffold.  
Now the Spencers are Lords alone, thinking themselves above reach of the once formidable Barons, and the Commons too inferior 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 loath 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 join. The favourites missing of their wont 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 ruin 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, 
Prerog. Reg. 17 Edw. 2.  for the extent of his prerogative in certain particular cases questionable; and this summed up, become a Statute for future times to be a ne plus ultra between the King and people. 
Stat. de Homage.  The like agreement likewise was concerning services of tenants to their Lords; and an oath framed to vindicate them from all encroachments. 
Stat. Templar.  And something was done to calm the Clergy for the demolishing of the Templar Knights, but the wound was incurable, words are not believed if actions do not succeed; nor will oaths now made to bind Kings, Bishops, Councillors of State, Sheriffs, Majors, Bailiffs, or Judges to justice; nor directions for regulating of Courts, nor Ordinances against false moneys and weights, nor all of them settle the people; but they adhere to the Queen, burning with jealousy against the King, and both herself and the Lords with rage against the Spencers. The King flies, and being forsaken of the people, the Lords, the Clergy, his own son, and the wife of his own bosom, and of God himself, as the most absolute abject that ever swayed Sceptre, lost the same; and being made a monument of God's revenge upon inordinate desires in a King, and of the English people, being enraged, not long surviving his demise, he died a death meet to be forever blotted out of the thoughts of all subjects, but to be had in everlasting remembrance of all Kings. For if a Kingdom or Parliament misleads the King, at the worst he is but misled by his Council; but if he be drawn aside by favourites, he must thank his own lust; in the one he hath but the least share in the burden, 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 otherways distracted by foreign and more urgent employments; so as 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 of such public nature, as its 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 its plain the public was so importantly concerned; and yet I will not justify all that I find written concerning their words and Actions. 
M Paris. An. 1217.  The speech of the E. of Cornwall to his elder brother, and King Henry the third, I will neither render up my Castle, nor departed the Kingdom, but by the judgement of the Peers: and of Simon the E. of Leicester to the same King, That he lied, 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. Martial to Edward the first, that he would neither go into Gascoine nor hang; & 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 colerick men be weighed together: Yet will not all these trench upon the cause, nor render the state of the Lords too high, or disproportionable to their place in the policy of the kingdom of England, as things than 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 currant of justice; concerning which I shall shortly state the case, and leave it to the censure of others. The government of the people of this Nation in their original was democratical mixed with an Aristocracy (if any credit be to be given to that little light of History that is left unto us from those ancient times.) Afterwards when they swarmed from their hive in foreign parts, and came over hither, they came in a warlike manner, under one conductor 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 settled 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 wander of the people in electing and deposing their Kings during the Saxon times. Nor did nor could the Norman Williams shake off this copartnership, but were many times, as well as other ensuing Princes, persuaded against their own minds and plotted desires. Nor can it otherways be supposed where Counsels are settled; for whereto serve they, if (notwithstanding them) the King may go the way of his inordinate desire? If the Lords than 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's noised, for them who are equally if not more entrusted with the Commonwealth than the King (by how much the Councillors 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's as probable, I grant that the Lords used the one as the other, for it was the common vice of the times to be rugged; yet if we shall 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 stranger's 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 overruled in this manner, and so was resolved to continue; I shall leave it to the better judgement of others what other healing plaster was to be had for such a sore. Albeit it cannot be denied, that more due respects might have been tendered 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 then 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 increased more than in the former King's 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 tied) and their second loss against Edward the second, which was yet more sharp, questionless quelled their spirits (although they lost no right thereby) and increased the King's 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 seconds Queen came from beyond the Seas, though with but a small force, all forsake the King; neither regarding the former terror of the Army of a King, nor the right of 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 bloods and estates, yet they saved all to the people, and left laws in force able to debate with prerogative in the hand of any King that should succeed. Thus stood the matter in fact upon such grounds as it had, the validity whereof it's not my work to censure neither by the balance 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 Clergy until the time of Edward the third: and herein concerning the Statute of Circumspect agatis, Articuli Cleri, and of general Counsels 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 controlled by none; and this wrought some stir in France, complain in England, 
M. Paris. 720.  and facing between the Emperor and the Pope. How chargeable this was to the Pope's treasury it's 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 levied upon the Churchmen, either by provisors, tenths, procurations, levies for the Holy war, Quindizmes, benevolences, or other such like; and where money was not to be had, by levies of Ornaments or of rich apparel; by intimation, begging persuading, commanding, threatening, and in this course continuing till they had outfaced shame itself, 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 Clergy 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, 
M. Paris  not the King hands to help; he neither durst nor would cross the Pope, although the Clergy 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 burden to Rome, and the members weary of bearing their head. Hereafter must the Pope beware of falling out with Kings, for the English Clergy now though late, see that all is not Gold that glisters; nor is it any great privilege 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's become their vere bortus deliciarum, 
M. Paris.  as the Pope called it when he saw the rich vestments of the English Church men: And therefore they must now be contented to be the 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 easy yoke of Christ's government, which was now at the door and ready to be revealed. Nevertheless poor and mean as the Clergy was they had courage enough not only 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 public distraction, and was bound to serve the cattles well that yielded him so much milk. 
M. Paris An. 1257. Vid. Addit. Baronius Anal. 1306.  The particular matters of debate may appear in their paper of grievances composed in Henry the thirds time, and their resolutions thereupon; their complaints were renewed again in the time of Edward the first (if we may give credit to Baronius) after the Statute of circumspect 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 Churchman's Idea was, and how fare the common law and King's prerogative would agree thereto.  
The complaints are of this natures  
1. That the Church-possessions in their vacances are wasted, and that Escheators do not only 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; as also the profits of Churches impropriate. 
2.   
3, & 4, & 5. Elections are either disturbed by the King's Letters preceding, or by delay of the Royal assent subsequent the said elections.  
6. The Lay power without the advice of the Clergy 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 Prelates commands in such cases.  
10. Persons taken and imprisoned upon excommunication are ordinarily dismissed without satisfaction unto the Prelate; and sometimes are not taken by the Sheriff, 
11. 12. & 33. 13.  notwithstanding the King's Writ; and as well the King as his Officers do ordinarily communicate with such as are excommunicated, and likewise command others to communicate with them.  
14. Clerks imprisoned for felony are refused to be delivered to the Ordinary, unless upon security to appear before the Justices in Oyer, 
15.  and sometimes are hanged before their Ordinary can demand them; and sometimes their heads are all shaved that they may not appear to be Clerks.  
16. Justice's itinerant do imprison Clerks defamed for felony, or otherwise outlaw 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 Clergy are compelled to answer and give satisfaction for offences against the forest laws, 
20.  before the Lay power: And in case of default the Bishop by distress is compelled to order satisfaction, 
21.  as well in such cases as in person all actions.  
22. Privileges of Sanctuary are invaded by force.  
23. Executors of Bishops are hindered from administering the estate without licence first obtained from the King.  
24. The King's tenants goods are seized after their decease by the King's Bailiffs.  
25. Intestates goods are seized by their Lords, and their Ordinary hindered from administration.  
26. The King's prohibition passeth in case of Tithes and Chapels.  
27. The like in cases of trothplight, perjury, cerage, heriet, or other Church duties, as money for reparations of Churches, and fences in Churchyards, 
28.  pecuniary punishment for Adultery, 
40. 29.  and costs of suit in Ecclesiastical court, sacrilege, excommunication for breach of the liberties of the Church, 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 show 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's tried by witnesses of two ribaulds: and in case it be found for the Ecclesiastical Judge's cognisance, 
31.  yet there is no costs allowed for such vexation.  
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 Frankalmoine are tried in the Lay courts; 
35. 36. 37. 38.  and by reason of such tenure the owners though Clergy men are compelled to do suit at the Lay courts, and are charged with impositions, and are distrained hereunto, although the Lord have other Land of the Donor in Frankallmoine subject to his distress.  
39 Prelates summoned to higher Courts are not allowed to make attorneys to appear for them in the inferior civil courts.  
41. Grantees of murage or other unwonted impositions compel the Churchmen to pay the same.  
42 & 43. The Clergy are charged with Quarter, Cart-service, and purveying.  
44. The chancery sendeth out new Writs contrary to the liberties of the Church, and the law of the Land without the assent of the Council of the kingdom, Princes and Prelates.  
45. The King doth compel the Clergy to benevolences to the King at his voyage into foreign parts.  
46. Amercements granted to Clergy men are turned into fines by the Justices, and by them taken.  
47. Clergy men are fined for want of appearance before the Justice's itinerant, and of the Forest upon common summons.  
48. Quo warrantoes granted against the Clergy for their liberties, and the same seized, unless they be set down in express words in their Charter, 
49. 50.  notwithstanding that by long custom they have enjoyed the same, and many times contrary to express grant.  
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 accessary, nor their Lands, no not of the King himself; and for this they join all as one man: Now what scare this made I know not, but Henry the third in the Stat. of Marlb. and Edward the first in his Stat. at Westminster, and other Satatutes: the first spoke 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 Abbats, Priors, and Prelates, 
Marlbr. c. 29.  etc. shall have an action of trespass for trespasses done nigh before the death of their predecessors upon the estates of their Corporations. And shall prosecute an action begun by their Predecessors. And also shall have an assize against intruders into any of the possessions belonging to the said Corporations whereof their predecessors died 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 Abbats and other Prelates, etc. the liberty of disposing their estates by last Will. King's therefore as supreme patrons to these bodies in their vacances used to seize all the estates of the Prelates with the temporalties to their own use, as well to preserve the riches of the kingdom to itself, and the possessions of such Corporations from spoil, as to be a cloak 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 in regard that all was by law adjudged to be in the sole possession of such head, 
Fits. Abbe 25.  and without whom all the rest were accounted but as dead persons.  

Marlbr. c. 10.  No Clergy man is bound to attend at the Sheriffs Turn.  
William the Conqueror first exempted the persons of the Clergy from attendance upon temporal Courts; yet they were still urged thereto, 
Gloss. p. 428. Ll. Hen. 1. c. 31.  and especially by a Law in Henry the firsts time; but by this law they are discharged, and in some measure a provision made against the grievance in the 39th Article before mentioned. These amends we find made to the Clergy 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.  
Clergy men nor their houses shall be charged with Quarter, nor their goods with purveyance or cart-service, 
West. 1. cap. 1.  under peril of imprisonment and damages by action or imprisonment.  
The great endowments of Lands, Rents, and Revenues given to the Churchmen 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 only 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, being demanded, 
West. 1. cap. 2.  shall be delivered to the Ordinary; but being indicted shall not be dismissed by the Ordinary without due purgation.  
With due respects to the judgement of those grave and honourable persons of the Law, 
Co. 2. instit. 164. Stamf. 130.  it seemeth to me that before the making hereof the use was, 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 trial before the Judges itinerant; which thing was not easy to be had for a Clerk, as times than were. This Law therefore was made in favour of the Clergy, who required that such as were Clerici noti & honesti should forthwith upon their apprehending be sent unto their Ordinary, 
M. Paris addit. fo. 200, 306, 207.  and those which were vagi & incogniti should upon demand be delivered to be judged by their Ordinary freely, and non expectatis justiciariis quibuscunque: Such wand'ring 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 15 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. fo. 11.  Thus is Briton to be understood in this point; whereas Bracton speaking of such as are convicted, affirmeth that if demand be made of such as are not indicted (for of such he speaketh) they ought to be delivered without indictment: 
Bracton, lib. 3. fo. 123.  I suppose he meaneth by the Church law, for till this Statute the temporal Judge's practice was otherwise, as appeareth by the 14 Article of the Clergies complaint foregoing; and so by this Law the 14 and 15 Articles of the Clergies complaint are answered.  

West. 1. c. 5.  Disturbers of the freedom of elections fined.  
With submission to the judgement 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 especial 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 Clergy if not this.  

W. 2. c. 19  Ordinaries having the Goods of the intestate 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 firsts 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 Clergy had drawn blood: for though the possession was as formerly, yet the dividend must be made in the view of the Church; and by this means the deviders were but mere instruments, and the right was vanished into the clouds, or as the Lawyers term it in Abeyance. But in Henry the thirds time the Clergy had not only 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 and 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 glean; the Law of Circumspect agatis brings in a load at once: For the Clergy being vexed with the passing of the Stat: of Mortmain (whereof hereafter when we come to speak of the Clergies losses) they make grievous complaints of wrongs done to their privileges; 
Antiq. Brit. 194.  and after six years the King is at length won; and passed a writing somewhat like a grant of liberties, which before times were in controversy; 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 Clergy if they hold plea in Court Christian of things merely spiritual: 
Circumspect. agatis.  for in such cases the Ecclesiastical Judge hath cognisance notwithstanding the King's prohibition.  
It's therefore neither grant nor release, but as it were a covenant that the Clergy shall hold peaceable possession of what 〈◊〉 had, upon this ground, that the 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 estopell, upon this maxim 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, etc. 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 sense of the term any other way, but to limit it to such things which by common custom the Ecclesiastical Judge had cognisance of: for otherwise neither King nor law ever intended it to be expounded by the Canon, nor was it the intent of this Writ, Law, or Licence, (call it what you will) thus to conclude, as the particulars following will manifest.  
Fornication, Adultery, and such like punished sometimes upon the body, and sometimes upon the purse.  
These crimes the Saxons punished by the temporal power, as I have already showed. The Normans continued this course if we may believe the Conquerors laws which gave the fine in such cases to the Lord of the delinquent. 
Ll. Gulielm. cap. 14, 19, 371.  And it is confessed that Henry the first and the second continued it (as the Clergies own complaint just or unjust doth witness.) And what course was holden in the times of King Steven and John is to me unknown, 
M. Paris addit. fo. 201. art. 28.  nor is it much to be regarded, seeing the latter did he cared not what, and the former to gain the good will of the Clergy regarded not what he did. The custom therefore cannot be made good for the Clergy, much less to punish the bodies of freemen in such cases, it being contrary to the grand Charter; never asked by the Clergy formerly, nor no complaint before now for 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 be 〈◊〉 so contrary to the common sense of Parliament to give the bodies of the free men to the will of the Clergy, to whom they would not submit their free holds. But the Writ proceeds in enumeration of particulars.  
Reparations and adorn of Churches and Fences of Churchyards. Violence done to a Clerk, Defamation to reform, not to give damage. Perjury, oblations, payments of Tithes between Rector and Parishioner: Right of Tithes 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 Clergy 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 it. The learning in the Prince's case will (I suppose) admit of a difference: 
Coke lib. 8.  for it can never be made out that the King's Council in Parliament was the Magnum concilium Regni, but only the house of Lords; and therefore whatever passed in Parliament by their only 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 itself of that which was originaly custom. And therefore this law however countenanced can never be concluded to be other than a permission; not only because it was never the act of the Commons of England, but because its contrary to the liberty of the free men; and it's beyond all imagination that the Commons should out themselves from the protection of the Common law, and yoke themselves, their free holds, and estates under the bondage of the Canons; nor ought such a construction to be admitted without express words to warrant it. As for the conclusion, it is much worfe, and not only 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 itself, whiles it makes prohibitions grounded upon Laws to be nullities by a late trick of nonobstante, which was first taken up by the Pope, then by Henry the third, and by this King granted to the Clergy: and thus are all set at liberty from any rule but that of 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 ere the King stood in need of money, and was necessitated to try the good wills of the Clergy more than once: this occasioned them to be slow in answer, and in conclusion to deny that they should aid the King with any more money, 
Antiq. Brit. vit. Winchelsy.  Papa inconsulto. The King hereupon disavows the Clergy, and leaves them to the Romish oppressions, which were many; and then the Clergy rub up all old sores, and exhibit their complaints to their holy Father, 
Baronus Annal. An. 1306.  to this effect: 

1. That the King's Justices intermeddle in testamentary causes, accounts of Executors, and cognisance of Tithes, especially to the fourth part of the Living.  
2. That the Clergy were charged to the King's carriages. That the King's Mills were discharged from paying of Tithes. That Clerks attending on the Exchequer were necessitated to nonresidency. And that after their decease their goods were seized till their accounts were made. That Ecclesiastical possessions were wasted during vacancies.  
3. That Clerks were admitted to free Chapels by Lay men.  
4. That the King's Justices took cognisance of Usury, Defamation, violence done to Clerks, Sacrilege, Oblations, Fences of the Churchyards 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 Clergy.  
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 looseth its 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 kindred.  
15. That Churches are deprived of their privileges till they show Quo warranto they hold them.  
16. That Eccelesiastical Judges are stopped in their proceed by Sheriffs and great men.  
17. That Bishop's refusals of Clerks presented are examined in the Lay courts.  
18. That patrons of Religious Houses do oppress them by extreme Quarter.  
19 That Bigamy and Bastardy are tried in Lay courts.  
20. That the King suffers his Live to be vacant for many years.  
21. That the Clergy are wronged by the Statute of Mortmain.    
Here's all, and more than all that's true; and more then enough to let the reader see that the Writ Circumspect agatis was but a face put on for the present, after laid aside, and the Clergy left to the bare Canon. They likewise show what the Clergy aimed at: and in that they did not obtain was to be attributed to the resolution of the Laity, and not to any neglect in themselves; for the Archbishop died in the service, and its thought that grief for these matters was no little cause thereof. But the times within a while grew troublesome, 
Antiq. Brit.  and the King in pursuit of the French wars, being unadvised in in his way angered the people by his arbitrary levies of men and money, 
Articuli cleri.  as it brought forth a State scowl, little inferior to a quarrel. And to pacify the Clergy he granted them the Writ de consultatione habenda in all matrimonial and testamentary cases, 
Stat. de consul. tat. 24. E. i.  which were of their least doubted privileges; and this qualified the first Article of complaint next foregoing, if such cause they had of complaint; and this was all that the Clergy got at Edward the firsts hands. Edward the second was a man that was neither well affected to Rome, nor 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 Clergy, 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 cognisance extendeth unto Tithes, Oblations, 
cap. 1.  and Mortuaries, and to pecuniary recompense.  
In the first times neglect or denial of Church-duties was punished in the King's court by fine. Afterwards the Bishop was joined in that work, 
Ll. Alfred. c. 9 Ll. Edw. cap. 6.  and the tythable goods were seized; eight parts whereof was taken to the Lords and the Bishops use by moities; a ninth part left to the owner, and the tenth to the Church; 
Ll. Canut. c. 8.  nor had the Bishops any peculiar Courts of cognisance of causes till the times of the Normans; nor as yet in those times had they power to all intents; for though it be true that the Roman tribute of Peter-pences was allowed by the conquerors law to the Bishop's court, 
Ll. Gul. 20. cap. Spicileg. 180.  yet we find no law for Tithes and other profits to be recovered by the Ecclesiastical court till about the end of Henry the seconds reign, or King Stevens time; for at a Council at London in Henry the seconds time it was ordained that three summons in the Pope's name should be made to such as paid not their Tithes, 
Binius Tom. 7 fo. 661. An 1173.  and in case they then refused 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 Tithes, 
Baronius Annal. 1222. cap. 19  and then if necessity require 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 Baron's wars, about his latter end yielded to Boniface the Archbishop his importunate demands, and first gave liberty to the Clergy to be their own Judges; and yet the Lay Judges, although divers of them were Clergy men did not suddenly forbear till this law came, which gave some satisfaction to the first and fourth Articles of complaint foregoing.  
Ecclesiastical cognisance extendeth not to a fourth part of the Tithes of any Living, 
cap. 2.  nor to pecuniary mulcts for sin, saving by way of commutation.  
The complaint of the Clergy in Henry the thirds time was against the King's prohibition in case of Tithes indefinitely; for in those times & afterwards in Edw. the firsts time the King's court had the cognisance of all Tithes, and therefore in the Statute of Westm. 2. c. 5. the Writ of Indicavit was allowed in case of right of any portion of Tithes; yet the Church still gained ground, and about or before the death of Edward the first the Temporal Judge had yielded unto the Clergy the cognisance of a portion of Tithes under the value of the fourth part, 
Artic. 1.  (for in the Article next foregoing the Clergies complaint was that the King's Justices held cognisance of the fourth part) & here they were confined thereto by this law, which the Clergy could never remove.  
For violence done to Clerks the offender shall render damage in the King's Court, but Excommunication, 
cap. 3.  Penance, and Commutation shall be in the Bishop's court.  
The Canon law had an ancient claim to the Protection of Clerks both as touching their persons and estates; and prevailed so fare as they were thereby emboldened to offer violence unto others. But as I formerly showed by a Law in Henry the seconds time the Temporal Judge resumed his original power; and this became a sore evil between the Clergy and Laity, 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 show 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, when as it was adjudged per curiam that it belonged to the Ecclesiastical court to punish: 
Fits. Harb. 7 Hen. 3. prohibition. 30  But in Edward the firsts time, by the Ordinance of Circumspect agatis, and Articles concerning prohibitions; the difference was made between damages and pray reformatione, and the same affirmed by this Law, and so the matter settled, and the fourth Article of the Clergies complaint in some measure satisfied.  

cap. 4.  Defamation within cognisance of the Ecclesiastical court, 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 sense to defamation for crimes or offences triable in the Ecclesiastical court: and this gave further satisfactin to the fourth Article of the Clergies complaint foregoing.  

cap. 5.  Tithes of new Mills may be recovered in the Ecclesiastical court.  
This Tithe of Mils was a new encroached Tithe 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 Mils. It's true that anciently Mills paid Tithes, but such they were which were ancient 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 next foregoing it appears that the King's Mills refused to pay this Tithe; now whether the new Mills were called the King's Mills, as being made upon the public streams by the King's licence; or whether the Mills newly made within the Demesnes of the Crown it's not to be insisted upon; but its evident that till this Law made the new Mills would not tithe their labours.  
One and the same matter may be tried at the common Law after sentence in the Spiritual Court in divers respects. 
cap. 6.   
The great sore that was complained of was that the Clergy after purgation in the Ecclesiastical court made, were proceeded against in the King's 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 subjoins 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 tried in the Ecclesiastical court, and yet reviewed by the King's court.  
The Writ de Excommunicato deliberando shall not issue forth but upon evident breach of the King's liberty. 
cap. 7.   
This might be intended in satisfaction of the tenth Article of the Clergies complaint in Baronius, and the tenth Article in the Clergies complaint first recited; although that complaint both in the 10, 11, 12, and 33 Articles seem to be but clamour upon Officers, and not the King's court of justice.  
Clerk's Officers to the Exchequer are to be corrected by their Ordinaries; 
cap. 8.  and yet not tied to residence during their attendance on the Exchequer.  
This is in part an answer to the second Article of the Clergies last complaint, and a justification thereof as a thing that is pro bono publico.  
Clergy men's goods shall not be distrained either in the high way or Sanctuary grounds, 
cap. 9  unless such as have been of late purchase.  
The complaint exhibited in Henry the thirds time, and the 8th Article was only in ordinary personal actions; but in the complaint made in Edward the seconds time Article 12. is that it's without cause that they are so distrained. This law yields them somewhat, viz. immunity from distress within their ancient possessions which had been by ancient custom privileged, but yields nothing as touching their latter purchased Lands, because they had no such custom.  

cap. 10.  High ways and Sanctuaries shall be free for such as abjure, so as they shall neither be restrained from liberty, nor necessaries kept from them. Felons may make free confession to the Priest without danger.  
The grievance in the 22th Article of the Clergies complaint, in Henry the thirds time, and the ninth in that of the times of Edw. 2. are hereby relieved; provided that the delinquent keeps himself in due order.  

cap. 11.  Houses of Religion shall not be oppressed with corodies, pensions or entertainments of great men.  
This answered the grievance in the 42 and 43 of the first complaint, and the 18 of the latter, and in effect little other then what was formerly settled by West. 1. cap. 1.  

cap. 12.  The King's Tenants may be cited before the Ordinary out of their own Town, and if Excommunicated for want of appearance, the Writ de excommunicato capiendo shall be awarded.  
A remedy this was against the grievances in the 12 and 33 Articles of the first complaint, and in the 10th Article of the last schedule of complaints. And thus the Clergy have gotten the day of the King's Tenants, which they had been striving for ever since the conquest, as may appear by what hath been formerly said; and now the King's Tenants are in no better condition than other men, viz. they may now be excommunicated without the King's licence: nor is the answer Nunquam fuit negatum to be referred to the point of Excommunication; for that power was denied them but unto the citing them out of their own Parish, which cannot be found to be denied to the Clergy by any thing that yet appeareth.  
A Clerk presented and found unable by the Ordinary shall be tried again by the Ecclesiastical, 
cap. 13.  and not the Lay Judge.  
Although the fitness or sufficiency of the party presented is to be examined by the Ordinary, yet the civil Magistrate hath power in action brought to inquire and determine whether the Ordinaries work was rightly done, and so the 17 Article of the last complaint answered.  
Elections shall be free. 
cap. 14.   
The law was of the same with this in the Stat. W. 1. cap. 5. which see before; and it may be that the iniquity of the times continued notwithstanding and so occasioned the renewing of this law.  
A Clerk having taken Sanctuary shall not be compelled to abjure. 
cap. 15.   
Nor after confession of the crime, 
cap. 16.  or appealing others before the secular Judge shall be denied his Clergy.  
Although the Temporal courts proceeded not so fare as to pass sentence against a Clerk that had taken Sanctuary; yet they proceeded to inquiry, as may appear by what was said formerly concerning 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 and profits of his lands until due purgation, 
7 E. 2. Fits. tit. forfeiture 34.  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.  

Stat. de asport. relig. 35 E. 1.  No religious House shall be charged with tax to any superior without the Realm of England; nor shall send to any visitation out of England.  
This was neither at the request of the Clergy 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 foreign parts.  

Mag. carta cap. 35.  Patrons of Abbeys shall have their custody during their vacancies.  
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's with a sicut superius dictum est, cap. 5.  

Stat. de prisis Edw. 2.  The goods of the Clergy freed from purveyance, unless they will.  
It was a favour given by Edw. 2. to the Clergy 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.  

Stat. de quo Warranto. 18 Edw. 1.  Franchises holden by prescription or charter confirmed, and trials by Quo warranto allowed to be in eyer.  
It was the common share of the great men, but especially of the Clergy to have their franchises exposed to the prey of the Eagles, or to such as hauked for them; and its likely the King had not so easily forgone his prize, if all the fat had fallen to his own share; but perceiving that more benefit came to his instruments then 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. carta 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 Clergy were covetous, and swallowed down estates, and thereby weakened 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. fo. 13. Coke. 2. instit. super Magna carta cap. 36. p. 74, & 75. Bracton lib. 2. cap. 10. fo. 27.  It seems this Law was made after Bractons' time, if that be true in the second institutes: for he saith that a man may give his lands to any one, 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, albeit the gift be in free alms. Nevertheless it seemeth to be such restraint as the Templars and Hospitallers were feign to find out a new way, which was to protect men's tenements from execution of law by levying crosses thereon, albeit the right of the Lords was not barred; and therefore Edw. 1. 
Stat. West. 2. cap. 33.  provided a law to make this also in nature of a Mortmain within the Statute made in the seventh year of his reign, 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, 
Stat. de Religiosis. 7 E. 1.  or if he failed the King should enter and dispose of the same; and that no licence of Mortmain should be sued out but by the mean Lords assent; and where part of the premises remain still in the Donor, 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, 
Stat. de Amortizandis terris. M. West. An. 1280. Mag. carta cap. 39  and by continual current emptying it into the mare mortuum of the Clergy 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 King's command.  

Miror Just. cap. 5. sec. 3.  So is the sense of the law rendered by an ancient author; 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 show that its a liberty that the subject hath, not to be compelled to take oath without the King's especial command: and by consequence it showeth also that the King at that time, and until then had the directory of oaths; for it was an ancient liberty given in the King's charters unto such as they pleased, viz. to impose oaths, 
Malimsb. de gest. Reg. lib. 2.  and to punish for breach of oath, 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 Churchmen that first procured vacations from suits of law during holy times, procured a law also to be settled by Edward the Saxon King and Gunthurne the Dane, 
Ll. Edw. cap. 9  that Ordeale and oaths should be forbidden upon the holy Feasts and lawful fasts. And a wonder it is how it escaped the gripe of the Clergy so long, who catched at any thing that had but a glance of God's 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 Glanviles' rule, Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curiae. But the power of the Clergy 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 be ministered, 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 Archbishop 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 licenced by the Archbishop 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 eights time. The Clergy 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 Clergy men's 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 that he be before our Justices to show cause why he made to be summoned, 
Regist. fo. 36.  and by Ecclesiastical censures constrained Lay persons, men or women to appear before him to swear unwillingly at the Bishop's 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 Clergy were at contest for this power over the people's consciences, to which neither had the right otherwise then by rules of law.  
Bigamists' shall not be allowed their Clergy, 
Stat. Bigam. 4 Edw. 1. cap. 5  whether they become such before the Council of Lions, or since; and that Constitution there made shall be so construed.  
Whatsoever therefore their Synods in those times pretended against the married Clergy seemeth by this law that they had Clergy that were married once and again; and yet before and after the Council were admitted as Clerks in the judgement of the Law. But the General council interposes their authority, and deprives them that are the second time married of all their privileges of Clergy. It was it seemeth twenty years and more after that Council before the Churchmen in England were throughly reform, for either some were still Bigami at the making of this law, or as touching that point it was vain; nor is it easy to conceive what occasion should after so long a time move such exposition, the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whither this slow reformation arose from the defect in law, or in obedience thereto, may be gathered from some particulars ensuing. First, it is apparent that the canons of General counsels 
General counsels.  eo nomine had formerly of ancient times gotten a kind of praeeminence 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 counsels were received by Synodical constitutions of this Kingdom made in the joint meeting both of the Laity and Clergy; and during such joint consulting the summons to the General counsels was sent to the King to send Bishops, Abbats, etc. but after that the Laity were excluded by the Clergy 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 Abbats and Priors in general; 
Bineus tom. 13 Ps. 2. pag. 674. M. Paris.  by virtue whereof they went inconsulto Rege, (and sometime Rege renitente) and appeared either personally or by proxy. Others came as parties to give and receive direction, or hear sentence in matters tending to spiritual regards: and for this cause issued summons sometimes even to Kings; as at the council of Lions aforesaid, it's said that the Pope had cited Reges terrae & alios mundi principes & dictum principem, meaning Henry the third; 
M. Paris An. 1245.  the matter was for assistance to the holy war; and to determine the matter, Henry the third, and his Clergy men. And as in that case so in others of that kind, Kings would send their Ambassadors or Proctors, and give them power in their Prince's name interessendi, tractandi, communicandi & concludendi. First, of such matters quae ad reformationem Ecclesiae universalis in capite & membris, then of such as concern fidei orthodoxae fulciamentum, 
Bineus Tom. 3. Ps. 2. pag. 913. & Tom. 4. Ps. 1 pag. 14.  Regumque ae principum pacificationem, or any other particul r cause which occasionally might be inserted: so long then as Kings had their votes in the General counsels, they were engaged in the maintenance of their decrees; and by this means entered 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 foreign parts where the General counsels were holden, and that it was thrift for them to send such proctor's that might not altogether spend upon the King's purse) allowed Bishops and Clergymen 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 joined in one. Neither did Kings only save their purse but they also made their own further advantage hereby; for by the engagement and respect which these his proctor's had in counsels, 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 join with their Ecclesiastical 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 (as Henry the third did at the council at Lions) and this sounded in nature of a protest, 
Fox Mart. Ps. 2. 263.  and (within the Realm of England) had the force of a proviso, or saving. But if the worst of all came to 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 Archbishop Peckam, An. 1280. the acts of the Council of Lions was ratified, and amongst others a Canon against non residency and pluralities; and yet neither Council nor Synod could prevail. for in Edward the seconds time an Abbot presenting to a Church vacant (as was supposed) by the Canon of pluralities the King whose Chaplain was disturbed enjoined the Abbot to revoke his presentation upon this ground Cum igitur etc. in English thus: 
Antiq. Brit. Eccles. fo. 209.  Whereas therefore that decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whiles they attend upon their service shall not be constrained to undertake holy things, or to be personally resident on their benefices, etc.  
And if this present law be considered whereof we now treat, which took leave to enact a sense upon a former Canon so long since made; and (which is all one) to make 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 sense of an English Declaration that had not yet attained the full growth of a Statute, 
30 aff. pl. 5.  as was then conceived; it will evidently 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 particular Nation contrary to its own original and fundamental Law. And as the voters sent to the general Counsels 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 expense, as he saith, did order that the number of Proctors in such cases should be few: but in truth the times than 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 blood; and although the Bishops being fast friends to the Pope by virtue of their oath did prevail in power, and the Pope had the control 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 minds 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 the voters; for whereas it seemeth to be an ancient rule that only 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 the third, and the case required it: for the oppressions of the Pope began to ring so loud, 
M. Paris An. 1245.  as the holy 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 that Council at Pisa for the composing and quieting that great schism in the Popedom, Henry the fourth sent solemn Ambassadors, and with them nigh eighty in all. But unto the Council at basel, Henry the sixth sent not above twelve or thirteen, as Mr Selden more particularly relateth. 
Spicil. 215.  And unto the council at Lions formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extorsions of the Court at Rome, their Legates and Emissaries. The sum of all will be that the Acts of general Counsels were but counsels which being offered to the sense of the Parliament of England might grow up to the degree of Laws, if the Parliament liked them.  
Nevertheless Nation all Synods 
Synods.  in England undertook the quarrel of General counsels: for Archbishop Peckham in a Synod 1280. enjoined the constitutions made in the Council at Lions to be observed under a curse without consultation first had with the Parliament, or before he knew whether they would be right or wrong; and before him Boniface made constitutions in opposition to the customs of the Kingdom, so as the matter was now come to a kind of contest whither 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, by Writs directed to the Bishops firmiter inbibendo quod sicut Baronias quas de Rege tenent deligunt nullo modo praesumunt concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt, 
Rot Parliam. 18 H 3. num. 17.  quod si fecerint Rex inde se capiet ad Baronias suas.  
And this prevailed so fare as the Bishops durst not adventure too fare 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, as they did in the case of bastardy, wherein they would have had their consent that children borne before marriage to be made legitimate by the marriage subsequent; 
Stat. Merton. cap. 9  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 trial of general bastardy unto themselves.  
Nevertheless the times were such as Kings being too weakly assisted by the people, and the Clergy strongly seconded by the Pope, they took advantage of those times of distraction so as to hold themselves no further obliged to the King than the Pope and their own covetousness would allow them; and to make all sure, they had settled it so fare as they were able by a constitution, that the Clergy were not bound to aid the King Papa inconsulto; 
Antiq. Brit.  and they put it in practice in a Synod under Archbishop Winchelsie, Anno 1295. in the time of Edward the first; and although the King prevailed in the conclusion at that time, yet from the times of Henry the third the Clergy for future times granted their aides to the King by themselves, and a part from the rest of the body of the 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 Clergy 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. 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 broils of Civil wars, the free men 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 Clergy; and therefore it's 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 superior 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 sent, yet they still retained the prey within their view. Sometimes they were cast fare 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 into the Public 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 sense, 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. 
Mag. carta.   
The Free men shall enjoy these liberties to them and their heirs for ever. 
cap. 2.   
The heir in Knightservice shall pay the ancient relief.  

cap. 3.  That reliefs were settled by the Saxons hath been already showed, and also that they were continued and confirmed by Henry the first: only in those times they were paid in Horses, Arms, etc. but in after times all was turned into money, which was more beneficial for all.  

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

Glanvil. lib 6. cap. 1. & 4.  The Law of Wardship may seem more anciently seated in this Kingdom than the Normans times, 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. Marlbr. cap. 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.  

Stat. Marlbr. cap. 16. & prerog. Reg. cap. 3.  And in case the Lord would hold the Wardship longer than the full age of the heir, 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 ancestors death, the Lord could not enter the Lands; and yet he should have a relief, and the primer seisin.  
And if the heir entered the Lands before homage done, he gained no free hold, 
Prerog. Reg. cap. 13.  though he were Knighted before, as this Law provideth: for it may seem that these times of civil war brought forth a trick of Knighting betimes, as an honourable encouragement for young sparks to enter the field before they were complete 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 shall preserve the Land, etc. from waste, 
cap. 5.  and the tenants from extortion.  
They shall yield up the same stocked if they receive them stocked. 
cap. 6.   
The first of these is the law of common reason for its 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 only the oppession of Lords upon their Wards, but also the corruption even of the law itself, that at the first aimed at the good of the public, and honour of Knightservice, 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 embasing of the generation of mankind and spoil of times. Nor did these times ever espy or provide against the worst of these, but only endeavoured to save the estate by punishing the wasters in damages by this law, and by forfeiture of the Wardship by a Law made in the time of Edward the first; 
Stat. Gloc. cap. 5.  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 firsts 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 Carta, or at least not so reputed. 
Artic. sup. cart. cap. 18.  It was therefore afterwards provided that these also should render damages in a Writ of waist to be brought against them.  
The marriage of Wards shall be without disparagement. 
cap. 7.   
It was an ancient law amongst the Germans and the Saxons brought it hither, 
Tacitus mor. Germ.  and as a Law settled it that marriage must be amongst equals; but the Danes and Normans slighted it, and yet it continued, and was revived. Now as the Lord had the tuition of the Ward instead of the ancester, so had he the care of the marriage in such manner as the ancester might have had if he had lived. For in case the Ward were stolen and married, the delinquent suffered fine and imprisonment. Or if the ward married without the Lords consent he shall have the double value, 
S at. Merton. cap. 6.  and hold the land over till satisfaction; But in case the Lord marrieth the Ward within fourteen years of age to its disparagement, 
cap. 7.  he shall lose his Wardship thereby. And if the Ward refuseth to accept of a marriage tendered by the Lord before her age of 16 years, 
West. 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. 
West 2. cap. 16  These laws were in use during the reigns of those Kings, although it can not be certainly concluded hereby that the wife's 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.  

cap. 8. Vide Stat. Merton cap. 1 & 2. Prerog. Reg. cap. 4.  Widows shall have their Dower, inheritance, their inheritance which they have jointly with their husbands, their marriage freely, and their Quarentine.  
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 intent to give liberty to widows of Wards belonging to inferior Lords to marry whom they will; and that only the King's 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, 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 that the widows shall not be compelled to marry nevertheless if they shall marry they must marry with the Lords liking, 
cap. 9 Glanvil. lib. 7. cap. 12.  otherwise he might have an enemy to be his tenant that might instead of homage and service prove traitor, and be his ruin. Lastly touching the widow's 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 met not with amongst the Saxon laws, and therefore suppose it be of Norman original.  
No man's land shall be seized for debt to the King so long as the personal estate will satisfy. 
cap. 10.  Nor shall his pledge be troubled so long as the principal is sufficient, unless he refuse to satisfy, and then the pledge shall recover in value.  
The first part hereof was the issue of the law concerning elegit, formerly observed in the Saxons 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, and other Cities, Burroughs, 
cap. 11.  and Towns; and the Cinqueports, 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; upon which, although some of the succeeding Kings did invade, 
Seld. Spicil. fo. 192.  yet none of them made any absolute disseisin, 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 Latin misled 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 then in three cases aforesaid, viz. for redemption of their captive King, for Knighting of the King's son, and for his daughter's 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 assessments, but shall leave it to the consideration of the Reader.  

cap. 12.  No distress shall be taken for greater service or other matter than is due.  
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 showed: 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 fare as the defendant could not escape without charge and hindrance; 
Glanvil. lib. 12 cap. 9  therefore the law provided a Writ of remedy against unjust vexation, which Glanvile remembreth us of; 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, besides the recompense to the party: First, 
Stat. Marlbr. cap. 1. Glanvil. lib 9 cap. 1 & 8.  it must not be taken but by leave from the King's 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, Henricus Rex Ang. Hominibus Abbatis de Ramsey salutem. 
Gloss. 215.  Precipi oquod cito & just reddatis Abbati Domino vestro quicquid ei debetis in censu & firma & debitis & placitis; quod si nolueritis, ipse vos inde constringat per pecuniam vestram. And in all cases of matters due by common right, 
Glanvil. lib. 9 cap. 8. Stat. Marlbr. cap. 2, 3, 4, 15.  the distress never was done in an arbitrary way, but by Judicial act in the Lords 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 high way 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 especial 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 according to the ancient course; 
Marlb. cap 21. Glanvil. lib. 12 cap. 12.  and the Sheriff must grant replevy if it be demanded, although formerly no replevy was without special Writ, and yet they 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, a fine was set upon the offender: but in case it concerned only a tort done to the party, he was amerced: the one is called redemption, because the penalty otherwise must lie upon the person, 
Miror cap. 5. Sec. 3.  if it be not redeemed by pecuniary fine: the other is called amercement, which is originally a satisfaction unto the party wronged, by recompense out of the personal estate of the delinquent. 
Distric. Scac. Artic. mag. cart. cap. 12.  Thirdly, as touching the matter of the distress, it must not be of Plough beasts or sheep, unless in case of damage pheasant, if other distress may be had; for the Law had a care of such Cattles as were most of public concernment, and which was the main stock of subsistence, so fare as justice would allow: and therefore the unjust taking of any man's Cat-tail by any person whatsoever is liable to the same penalties that unjust distresses are. 
West. 1. cap. 16.  Fourthly, concerning the using of the distress, it must not be sold, no not in the King's case till fifteen days be passed after it is taken; 
Marlbr. cap. 4. Distric. Scac.  nor must it be carried out of the County, 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 then by the feoffment is due, or else by prescription; and in case many are jointly seized, 
Marlbr. cap. 9  the suit shall be by one, and the rest shall contribute. 
cap. 22.  Nor must any man be compelled to show his title to his Land by distress.  

cap. 13.  The Common pleas shall be holden in one certain place.  
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, the King hath one proper court wherein are the chiefest Judges, 
Capitales Just. nostri.  which both by his own testimony and Britons also did hear and determine causes of all sorts; yet is it true also that it was by appeal or Writ of error, as in case of false judgement; and that the King had plures curias, 
Marblr. cap. 20.  which doubtless had their proper work: and in the time of Henry the second its 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 only 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 only, 
cap. 14.  and by the justice's itinerant sent by the King or his chief justices.  
The law was so declared in Henry the seconds time, and was questionless put in practice; so fare 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 tried elsewhere in that circuit; which showeth that the Judges itinerant had their time proportioned out to every County. These trials also were so favoured, 
Westm. cap. 51.  as in the then holy times of Advent and Septuagesima or Lent, they might be tried, which although was gained by prayer made by the King to the Bishops, as the words of that law are concluded; yet it shows that the Parliament had so much light as to hold the time not inherently holy, but merely sequestered by the will of the Clergy. The Plaintiffs also in Mortdancester may be divers, if there be divers heirs of one ancester by one title. 
Stat. Gloc. ca 6.  And if there be joint-tenants, and the Writ be against but one, and the same pleaded, 
Conjanct. feofat. An. 34. E. 1. Stat. Gloc ca 1  the Writ shall abate; but if joint-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.  

cap. 15.  Darraine presentment shall be taken only in the common Bank.  
Trials 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, when as all other road circuit. For that Church's affairs in those times were of high regard: Speed of trial also was not little regarded herein; for Justices by Nisi prius properly were but for inquiry till the Statute at Westm. the second made them of Oyer and terminer in the cases of Quare impedit and Darraine presentment, 
West. 2. cap. 30.  and gave them power to give judgement. And thus the Commons gained still in point of conveniency.  

cap. 16.  Free men shall be amerced according to the degree of the fault, saving to them their free hold, and to Merchants their main stock, and to villains their Waynage; and Clergy 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, Clergy, Free men, and villains. But in regard of the parties by whom they are to be amerced, they are but two, Barons and Freemen, for the Clergy villains and free men are to be amerced by the free men of the neighbourhood. 
Marlb. cap. 19  In what Courts these amercements shall be the Stat. Marlbr. 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 only before the chief Justices, or Justices itinerant. The Statute of Westminster adds a fifth Classes of Cities, and Towns, by express words, 
Westm. 1. cap. ●  which seems not so necessary, unless in pillaging and oppressing times, for they were taken to be within the Statute of Magna carta, 
Miror cap. 5. sect. 4.  though not therein named. The rule of the quantity of amercements is now set down in 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 sustainance of the party is saved: yea the villains (how ever mean they be) they must have their maintenance. And this showeth 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 King's villains, who it seemeth were merely under the King's 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 than the villains were borne under a kind of liberty, as in the Saxon times formerly hath been declared; which the Law protected against their own Lords.  
No man shall be compelled to make repair, 
cap. 17 & 18.  or maintain any bridges, banks, or causies, other or otherwise then they were wont to be made, repaired, or maintained in the time of Henry the second.  
The limitation to the times of Henry the second, sheweth that his justice was such as maintained the common rights of men; but in the times of Richard the first, 
Miror cap. 5. sect. 2.  and more especially of King John, those rivers, waters, and fishings formerly used in common were encroached upon, enclosed, and appropriated to particular men's uses, which occasioned many bridges, banks, and causies, to be made and repaired to the great charge of private men, all which are discharged by this Law.  

cap. 19  No Sheriff, Constable, Coroner, or other Bailiff, shall hold any pleas of the Crown.  
Escheators are also expressed in the old books of Magna carta, and the abridgements, however it seemeth that it's 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 inquire of matters concerning the lives of men, and Sheriffs that had power of trials in cases of theft, as hath been already shown, 
Ll. Hen. 1. c 8. Glanv. lib. 1. cap. 2.  abased the same for their own benefit, because in such cases they had the forfeitures. This law therefore takes away such occasions, viz. from the Sheriffs and Corroners and Bailiffs or Justices, (other then by express commission thereto assigned) all power to hold pleas of the Crown by trial, leaving unto them nevertheless power of inquiry, of which anciently they had the right.  

cap. 20.  If the King's tenant dieth supposed in arreare, 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 firsts time, and a customary law in Henry the seconds time, 
Glanv. lib. 7. cap. 5.  being a remedy against an old Norman riot of the Lords seizure of the whole personal estate of the party deceased, under colour of a law. The second part concerning the overplus hath this additional subjoined 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, the Lord shall have his personal estate: 
Glanvil. lib. 7. cap. 16.  and in all cases the executor had then nothing but bare assets, and the overplus was assigned between the wife and children according to their reasonable part: or if the party died intestate the next friends did administer, paying the debts and making dividend of the overplus into the reasonable parts, according to the ancient Saxon custom still continued: nor doth the testimony cited out of Bracton prove any other then that the ancestor hath free power to order his estate as he pleaseth, 
Coke instit. 2. pag. 33.  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, but present satisfaction must be made: 
cap. 21.  and if in the same Town, satisfaction must be made within forty days.  
Purveyance was ancient provision for the necessities of the public, and so fare was commendable, seeing it's not the common case of all men to regard the public above their own private interest; therefore the public must provide for itself, by their means in whom the public 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 public defence. For it may 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 Citadels 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, 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 soldiers found out a trick of favouring their own quarters, and preserving them in heart against a back winter, knowing that at such times its better to seek for provision nigh, then 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, 
Westm. 1. cap. 7  then 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 burdensome 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 King's household, and so what scraps will be left for the Commons no man can tell. It was therefore necessary for the King's family to be maintained by purveyance; 
Artic. super cart. cap. 2.  and to avoid the many inconveniences which might and did arise in those spoiling times, It was ordained that it should be felony for any purveyor to purvy without warrant. 2. That none but the Kings purveyour must purvey for the King's house, and that he must purvey only for the King's 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 their commodities so taken, or with composition for the King's 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 Castleguard is not liable to payment of rent for that service; 
cap. 22.  Nor is he compellable to either, so long as he 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 only such; and therefore to hold by Castleguard is a tenure in Knight-service: and it seemeth that rent for Castle guard originally was consistent with Knightservice, and that it was not annual; but promiscuously Knights might either perform the service, or pay rend 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.  
No Knights nor Lords, nor Church-mens Carriages, 
cap. 23.  nor no man's wood shall be taken against the owner's consent; Nor shall any man's Carriages be taken if he will pay the hire limited by the Law.  
Churchmen were exempted from charge to the King's carriages merely in favour to the Canon which exempted the goods of the Clergy from such lay service; nevertheless the complaints of the Clergy formerly mentioned show that this was not duly observed. Knights and Lords were discharged not only for the maintenance of their port; but more principally because they were public 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 then 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, 
Instit. 2.  and the King had only the prerogative to waste them as a penalty or part thereof, but afterwards the Lords by agreement yielded unto the King the year and a day's profit to save the Lands from spoil; 
Bract. lib. 3. fo. 137. Prerog. Reg. cap. 16.  and in continuance of time the King had both the year and day, and waste. Fugitives also were in the same case, viz. such as deserted their Country either in time of need, or such as fled from the trial 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 moiety until she be espoused to another man, 
Prerog. Reg. cap. 14. Fits 2 E. 2. Tit. Escheat. 12.  unless she shall forfeit the same by fornication during her widowhood. And by the same law also the King had all Escheates of the tenants of Archbshops 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. 
cap. 25.   
All wears shall be destroyed but such as are by the Sea coast.  
The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames, and by virtue 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 high ways, 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.  

cap. 26.  The Writ of praecipe in capite shall not be granted of any free hold, whereby a man may be in danger of losing his Court thereby.  
It seemeth that it was one of the oppressions in those times that if a suit were commenced in the inferior or Lords court, concerning a free hold. A Writ of praecipe in capite might be had upon a surmise that the free hold was holden in capite, which might prove an absolute destruction to the inferior 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 clothes throughout the Realm of England.  
This law of weights and measures was anciently established amongst the Saxons, 
Ll. Edgar. c. 3.  as formerly hath been showed and continued in the Normans times, and confirmed by Richard the first and King John. And as touching the measure of the breadth of clothes, 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 settled in this manner to avoid deceit, and to establish a known price of clothes. 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.   
It 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 Sheriffs Torn; but when those rural Courts began to lose their power, and the King's courts to devour trials of that nature, especially by the means of the Justice's 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 freemen amongst the Saxons; it 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 trial 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. cap. 11  for it was ordained that the inquest should be chosen upon oath; and that two of the inquest at the least should be Knights, and those not interressed in the cause: but yet this could not rectify the matter, for it seemed so impossible to do justice and show mercy this way, 
Glocest. cap 9  that the Writ is at length taken away; and men left to their lot till the coming of Justice's itinerant. But this could not be endured above seven years; for though the King be a brave soldier, 
West. 2. cap. 29.  and prosperous, yet the people overcome him and recover their Writs de odio & atia again.  

cap. 29.  Lords shall have the Wardships of their Tenants heirs, although they hold also of the King in Petit Serjeanty, Soccage, Burgages, or fee Farm.  
Inferior Lords had the same right of Wardships with the King for their tenors in Knightservice, although their tenants did hold also of the King, unless they held of him in Knight-service, which was a service to be done by the tenants 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 utensiles: this was no Knightservice though such utensiles concerned war, 
Glanvil. lib 7. cap. 9  but was called Petit Serjeanty, as in the Lawbookes doth appear. Nevertheless Henry the third had usurped Wardships in such cases also and the same amongst others occasioned the Baron's wars.  

cap. 30.  No judge shall compel a freeman to confess matter against himself upon oath without complaint first made against him. Nor shall receive any complaint without present proof.  
This law in the original is set down in another kind of phrase in the first part thereof, which is obscure by reason thereof: in express words it is thus, No Judge shall compel any man ad legem manifestam; which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter inquired 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 Clergy and the temporal Judges imitated them therein; and this became a snare and sore burden 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 only and old way of trial; for Glanvill saith, Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare, nisi prius convictus fuerit vel confessus in curia: 
Bracton. fo. 106  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 subjoined, which at this day is implied in those general words in their conclusions, Et inde producit sectam suam, that is, he brings his sect or suit, or such as do follow or affirm his complaint, as an other part also is implied in those words Et hoc paratus est verificare. 
Seld. super Hengham.  For if the plaintiffs sect or suit of witnesses did not fully prove the matter in fact the defendants averment was made good by his own oath, and the oaths of twelve men, and so the trial was concluded.  
No free men shall be imprisoned or disseised of his freehold 
cap. 31.  or liberties, outlawed or banished or invaded, but by the Law of the Land, and judgement of his Peers. Nor shall justice be sold, delayed or denied.  
It's 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, than 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 show 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.  

cap. 32.  Merchant's shall have free and safe passage and trade without unjust taxes, as by ancient custom they ought. In time of war such as are of the enemy's 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 show, besides what may be observed out of the Laws of Aetheldred and other Saxon laws. So as it appeareth that not only the English free men and natives had their liberties asserted by the law, but also foreigners 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 free man 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, outlaw's, and those Countrymen 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 only grounded upon reason of State, although the free men 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 incert it in this short sum.  
After death of the Jews 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 debtor's Land, and saving the Lords service; and in like manner of debts to others.  
The whole doctrine of usury fell under the title of Jews; for it seemeth it was their trade, and their proper trade hitherto. 
Concil. Brit. 299.  It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times; but by the Confessors law it was made penal to Christians, to the forfeiture of estate, and banishing; and therefore the Jews and all their substance were holden to be in nature of the King's 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, and the Statute at Merton doth appear; 
M. Paris An. 1229. Merton. cap. 5. Stat. de Judais. An 18 E. 1.  but Henry the third did not put it into his Charter as I think, because it was no liberty of the subjects but rather a prejudice thereto; and therefore Edward the first wholly taken it away by a Statute made in his time, and thereby abolished the Jews.  
Tenant's Lands holden of Lands escheated to the King shall hold by the same services as formerly. 
cap. 33.   

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

Prerog. Reg. cap. 7.  Submitting to the judgement of the learned I conceive that as well in the Saxon times as until this law, any tenant might alien only 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 Lords consent, and for the same reason could they not alien the whole tenancy, to bind the Lord without his express licence saving the opinion in the book of Assizes, 
20 ass. pl. 17.  because no tenant could be enforced upon any Lord, lest he might be his enemy. Nevertheless it seemeth that de facto tenants did usually alien their whole tenancy; and although they could not thereby bar the Lords right, yet because the Lord could not in such case have the distress of his own tenant, this law saved so much from alienation, as might serve for security of the Lords 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. Westm. 3. ca 1.  saving to the Lords their services formerly due; and thus the Lords were necessitated to grant licences 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 public quiet was settled, as it would have been in former times of war, when as the Lords right was maintained more by might and the aid of his tenants, then by law, which then was of little power.  

cap. 35.  The 35 Chapter I have formerly mentioned in the Chapter concerning the Clergy.  

cap. 36.  No man shall be appealed by a woman for the death of any but her own husband.  
The right of appeal is grounded upon the greatest interest. Now because the wife's interest seemeth wholly to be swallowed up in her husband; therefore she shall have an appeal of the death of him only; 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 hath shown. And against whom appeals did lie the Statute at Westminster tells us, viz. not only against the principal, 
West. 1. cap. 14  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, 
Westm. 2. ca 13  it was by another law established that if the party appealed was acquitted the appealor should not only render damages, but be imprisoned for a year.  
The County court shall be holden at the wont 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 Michalmas  
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 suitor 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. cap. 10  the one of which made at Merton allowed all suitors to the rural Courts to appear by proxy or attorney, which it seemeth had power to vote for the masters in all cases public and private; and did not only themselves grow into parties and maintenance of quarrels, and so spoiled these Courts of their common Justice, but rendered 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, 
West. 1. c. 33.  and against it a law was provided, viz. that the Sheriff should not allow of such corrupt attorneys; yet this was no cure to the free men, 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. 
Marlbr. cap. 10.  The second law that took away much honour from these Courts was that law at Marlbridge 
Ibid.  that discharged the Baronage of England, and the Clergy 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's said by the wise man, where the poor oppress the poor its 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 vallews of the farm of Counties granted to the Sheriffs, 
Artic. super cart. cap. 13, 14. Stat. de vice. come. An. 9 E. 2  (for in those day's Sheriffs gave no accounts, as of later times they have done) and therefore the Charter of King john between the 17 and 18 chapter inserteth this clause Omnes commitat & 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 that could never be cured to this day. Nor could the wisdom of times find other help to keep the same from growing mortal, but by scanting the diet, and taking away that power and jurisdiction which formerly it enjoyed.  

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

cap. 38.  Escuage shall be taxed as was wont in the time of Henry the second.  
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 one marriage of his eldest daughter; and for this there shall be only 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 council 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 free men, unless for redemption of his body, and making his eldest son a Knight, and one marriage for his eldest daughter; and this shall be a reasonable aid only.  
Thus fare the Charter of King John concerning this point of tax or assessment; 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 left out in Henry the thirds Charter, in that Historians time; 
M. Paris  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 firsts time were assessed by the same way with that in this Charter of King John; for that all the quarrel between the Lords and King John was concerning the charter of Henry the first, which the Lords swore to maintain. Secondly, 
M Paris An. 1214, 1215 25 Edw. 1. cap. 6. 34 Edw. 1. cap. 1. West. 1. cap. 36.  that neither aids nor escuage were granted, or legally taken, but by Act of Parliament, although the rate of them was settled by common custom, according to the quantity of their fee. Thirdly, that some Parliaments in those times as concerning such matters consisted only of such men as were concerned by way of such charge, by reason of their tenancy, for escuage only concerned the tenants by Knight's service; and therefore those only were summoned unto such Parliaments as only 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 Ri. 1. were made by the consent of Archbishops, 
Hoveden 445.  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 public damage concerned all, yet it was ordinary for Kings to make a show of summoning Parliaments, when as properly they were but Parliamentary meetings of some such Lords, Clergy, and others, as the King saw most convenient to drive on his own design, and therefore we find that Henry the third about the latter part of his reign, when his government grew towards the dregs, he having in the Kingdom two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings, 
Gloss. tit. Baron.  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 then reason. Fourthly, that no aids were then granted, but such as passed under the title Escuage, or according there unto; 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 only 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, or notwithstanding the King's negative voice; for the words are The matter at that day shall proceed according to the council 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 pretertence. Last of all, though not gathered from the text of this law, whereof we treat, yet being coincident with the matter it is observable that though the Clergy were now in their ruffle, and felt themselves in their full strength; yet there befell a posture of state that discovered to the world that the English held not the interest of the Clergy to be of such public concernment, or necessary concurrence in the government of the Kingdom, 
Walsing. An. 1297.  as was pretended. For the Clergy finding assessments of the Laity so heavy, and that occasions of public 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 Clergy; and in the strength of this they absolutely refused 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 only outed of all privilege of Parliament, but of all the privilege of subjects, into the state of praemuniri: and thus set them up for a monument to future times, for them also to act without the consent of those men, as occasion should offer. But Henry 3d. not satisfied with this ancient and ordinary way of assessment upon ordinary occasions, took up that extraordinary course of assessment upon all the free men of the Kingdom, which was formerly taken up only in that extraordinary occasion of redeeming of the Kings or Lords person out of captivity, and common defence of the land from piracy; and under the title of Daneguelt, 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 free men 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 its probable that the inferior Lords were gainers. The conclusion of the Charter of Henry the third (the fame suiting also with the third observation foregoing) doth not a little favour the same; for its expressly set down that in lieu of the King's confirmation of the Charter of liberties aforesaid not only the Archbishops, Bishops, Abbots, Priors, Earls, Barons, and Knights, but also the free men, 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 England's liberties (saving two particulars inserted into the Forest laws of Henry the third, wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force, and Henry the third might (as he was advised) plead nonage, 
M. Paris An. 1227.  and so they might have been choked 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 wondered what might move them to adventure so much bloodshed, 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 loath to publish the same to all men. It's a strange vanity in great men to pretend love to justice, and yet not endure to be bound thereto, when as 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; feign they would undo, but could not. It's true it was at the first but a King's charter of confirmation, and had Kings been patiented therewith it might have grown no bigger; but by opposition it rooted deeper and grew up unto the stature of a Statute, and settled so fast as it can never be voided but by surrender from the whole body. 
Marlbr. cap. 5.   
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.  

Prerog. Reg. cap. 9  The King shall have the custody of fools and idiots lands for their maintenance, and shall render the same to their heirs.  
And concerning madmen and lunatics, 
cap. 10.  the King shall provide a Baylisse for their maintenance, rendering account to them when they are sober, or to their administrators.  
It is no less liberty or privilege 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 public, rather than out of 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 going along with the blood; and this so continued in custom until these times: for though the Miror of Justices 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, speaking of these kind of persons saith, 
Bract. lib. 5. cap. 20.  Talibus de necessitate dandus est tutor vel curator; not so much as mentioning the King in the case. 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. 
Lib. 1. cap. 10  But let the time of the entrance of this law be never so uncertain, it's 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, rendering to every one his right.  
The King shall have the wrecks of the Sea. 
Prerog. Reg. cap. 11. West. 1. cap. 4.   
What shall be called a wreck the Statute at Westm. 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, then given him as a proprietor, although that custom hath since settled 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.  

Marlb. cap. 17.  The heir in Socage tenure shall have an action of waste, and an account against his guardian for the profits of his lands and marriage.  
The heir in Socage being under age shall also be under custody of such guardian of the next kindred, 
Bracton. lib. 2. cap. 37.  who cannot challenge right of inheritance in such lands so holden, as if the Lands descended from the father side, the mother, or next of the kindred of the mother's side shall have the custody; and so if the Lands descend from the mother, the father or next kindred of the father's side shall have the custody. And this custody bringeth with it an authority or power only, and no right, as in case of the heir in Knightservice; and therefore cannot be granted over as the wardship in Knightservice might, but the guardian in Socage remaineth accountant 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 14 years, for at such age he may b 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 cloth, and such work as concern that calling.  

Merton. cap. 1.  Widows deforced of their Dower of Quarentine shall by action recover damages till they recover their Dower.  

cap. 2.  They shall also have power to divise their crop arising from her Dower.  

Bract. lib. 2. cap. 40.  It was used that the heir should have the crop with the Land, but this Statute altered that former usage, and yet saved the Lords liberty to distrain if any services were due.  
Writs de consimili casu granted in cases that fall under the same Law and need the same remedy, 
West. 2. cap. 24.  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, 
M. Paris addit. Artic. 44.  as the complaints of the Clergy in the times of Henry the third doth witness. Nevertheless because many men's cases befell not directly within the Letter of any Law for remedy, and yet were very burdensome, for want of remedy it's provided by this Law that in such emergent cases that do befall within the inconvenience, shall likewise be comprehended within the remedy of that law.  
Aid to make the son of the Lord a Knight, 
West. 1. c. 36.  and to marry his eldest daughter shall be assessed after the rate of twenty shillings for a Knight's fee, and twenty shillings for twenty pounds in yearly value of Soccage tenure.  
The uncertainties of aids are by this Law reduced and settled as touching the sum, and thereby delivered the people from much oppression, which they suffered formerly. Nor was only 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 Knightservice, 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.   

CHAP. LXVIII. Of Courts, and their proceed.  
BEsides the Courts of Justices itinerant, which were ancient, as hath been said, other Courts have been raised of latter birth, albeit even they also have been of ancient constitution, and divers of them itinerant also, and some of them settled in one place. The work of the Justice's itinerant was universal, comprehending both matters of the Crown and Common-pleas. That of oyer and terminer is only of Crown pleas originally commenced, and inquired of by themselves, and granted forth upon emergent crimes of important consequence that require speedy regard and reformation. Justices of Gaol-delivery have a more large work, that is, to deliver the Gaols of all criminal offenders formerly indicted or before themselves. Justices of Assize and Nisi prius are to have cognisance of Common pleas only, and for the most part are but foe inquiry. All which saving the Justice's itinerant in ancient use were instituted about these times, and therewith ended both the work and common use of the ancient iters; and yet all these later courts jointly considered have not the like comprehensive power that the iters had, for they had the power of hearing and determining all causes, both of the Crown and Common-pleas, albeit in a different manner; that is to say, in the first times promiscuously united into one and the same person; but soon after the Norman times, and more clearly in the time of Henry the second that power was divided into several persons, some sitting upon the Common pleas, others upon the Crown pleas: The Judges of these journeying courts were specially assigned by the King, as in the case of the Gaole-delivery or settled by the Law upon the Judges of both benches at Westminster, as in case of oyer and terminer, 
Westm. 2. ca 29  and of the Assizes or Nisi prius, saving that in the last case they were associated with Knights in the Counties for the taking of Assizes. 
Ibid. c. 30.   
Now concerning the Courts that were settled: some were settled or annexed to the King's personal residence, as the Chancellors Court; for in these times it began to have a judiciary power of eminent stature, and growing out of the decays of the great chief Justice of England. Then also the King's bench was annexed by the same Law unto the King's Court or personal residence, 
Fleta. Artic. sup. cart. cap. 15.  as it anciently ever had that honour; although it seems the endeavours were to make it like the Common pleas in that particular. Another and last court that was settled in this manner was the Marshal's court, which in the original only concerned the King's household, but afterwards compassed in a distance of the neighbouring places, 
5 E. 4 fo. 129.  because the King's attendants were many in those times; when as the Courts of justice continually attended on his person: and this precinct was called the Verge; and all cases of debt and covenant, where both parties were of the Household, 
Artic. sup. cart. cap. 3.  and of trespasses vi & armis where one of them was of the household were handled in the court of the Verge, or the Marshal's court. And inquests of death within the same shall be taken by the Coroner of the County, with the Coroner of the household. Other Courts were rural, and affixed also to some certain place, either of the County or Town, or other particular place. That of the County suffered in these times great diminution, even almost to destruction by a Law restraining the power thereof only to trespasses of 40 s. value or under; 
Stat. Gouc. cap. 8.  for though formerly the King's justices encroached upon the County courts and contracted suits before themselves, which by the ancient law they ought not; yet it was ever illegal, and the County courts held their right till this law was made, which kept under those inferior Courts, and made them of less account then formerly. Nevertheless the King's Justicies or Writ to the Sheriffs oftentimes enableth the inferior Court to have cognisance of cases of greater value. Lastly, a rule was set to the smaller Courts of Corporations, 
West. 1. cap. 23.  Fairs, and Markets, viz. that no person should be sued in any of them, which was not a debtor or pledge there.   

CHAP. LXIX. Of Coroners, Sheriffs, and Crown pleas.  

Coroners. Westm. 1. ca 10  COreners shall be chosen in the county from the wisest, greatest, and chief men of the country.  
Of these Officers formerly hath been spoken, as touching their election, qualification, and work: this Law brought in no change of any former Law, but only of a former custom gained by these degenerating times, which brought men into place that were fare unfit, who otherwise of poor and mean condition maintained themselves by bribery and extortion, and being found guilty had not sufficient to give recompense. This law therefore revives the first law and hold these men to their work of taking inquests and appeals by indenture between themselves and the Sheriff, and these were to be certified at the next coming of the Justices.  

Sheriffs. Artic. sup. cart. cap. 9  The Free holder's in every county if they will shall elect their own Sheriff, unless the Sheriffwicke be holden in see.  
This was indeed the ancient custom: as the Officers of the Kingdom were eligible by the Common-council of the Kingdom, 
Miror cap. 1. Sec. 3. Stat. de vic. 9 E. 2.  so were also the Officers of the County, chosen by the County. But within a few years in the time of Edward the second comes another law; that the Sheriffs shall be appointed by the Chancellor, Treasurer, Barons of the Exchequer, and the Justices, which Law was made in favour of the people, as by the file of that Statute doth more fully appear: for though at the first blush it may seem a privilege lost by the free men, that these great men should have the election of the Sheriff; yet it proved a great advantage to the common quiet of the people in those times of parties, and was so apprehended: Otherwise as the case stood in those days of Edward the second, it was no time for him to gain upon the people's liberties. Nor had the Statute of Articuli super cartas, whereof we now treat been penned with these words, if they will; and questionless in these days we now live in: if the people had but a little taste of this seeming liberty of electing Sheriffs in the County court, as formerly it was used, it would be soon perceived that the election of these chief Officers were better disposed in some other hand if rightly pursued.  
Homicide by misfortune shall not be adjudged murder. 
Chancemedly. Marlbr. cap. 25.   
That the Saxons made difference between homicide by misfortune, and that which was done felleo animo, or with a spirit of gall, formerly hath been showed; now what it was that altered the case I cannot say, unless the violence, cruelty, and oppression of the times: formerly all kind of manslaughter was finable, I mean in the Norman times, and so might more rationally be ranked into one degree; but now the punishment began to change from forfeiture of estate and loss of member, to death and forfeiture of estate; and therefore it was more necessary to make the difference in the penalty, seeing in the fine formerly a difference was observed; and this difference to assert by a Law that might limit the envenomed spirits of the Judges of those days.  
Robbery 
Robbery.  punished with death.  
This crime hitherto was punished by fine and loss of member at the utmost but is now made capital, & punished with death. One example whereof, and the first that story maketh mention of we find of an Irish Nobleman in the days of Henry the third, who suffered death for piracy; and it was a law that then, though rigorous, yet seasonably was contrived to retard the beginnings and hasten the conclusion of a civil war in a Nation who value their estates and liberties above their own lives.  

Rape. West. 1. cap. 13.  Rape upon the complaint of the party violated, made within forty days, shall have right. If the delinquent be convicted without such complaint made he shall be fined and imprisoned.  
Before this Law this crime was but finable unless the fact was committed upon a virgin, for then the member was lost. And this was the Saxons Law; but the Normans inflicted the loss of the member upon all delinquents in any rape. Nor was this made felony by any law or custom that I can find, till about these days. It's true that Canutus punished it capitis aestimatione, by way of compensation, which rather gives a rule of damages to the party wronged then importeth a punishment inflicted for an offence done against the Crown, as if it were thereby made capital. But for the more certainty of the penalty, another law provideth that if the rape be committed without the woman's consent subsequent she may have an appeal of Rape. 
West. 2. cap. 34.  And though a consent be subsequent, yet the delinquent upon indictment found shall suffer death, as in the case of appeal. But if a wife be carried away with the goods of her husband, besides action of the party the King shall have a fine. If the wife elopeth she shall lose her Dower, if she be not reconciled before her husband's death. All which now recited provisoes are comprehended together in one chapter, and yet the Chapter is partee per fess French and Latin: so fare thereof as concerneth death was written in French, being the most known language to the great men in general, many of whom were French, by reason of the interest that Henry the third had with France in his late wars against the Barons. It was therefore published by way of caveat, that no person that understood French might plead ignorance of the law that concerned their lives. The residue of that Chapter was written in Latin, as all the other Laws of that Parliament were, upon grounds formerly in this discourse noted. One proviso more remaineth, which is also comprehended in the same Chapter with the former, viz. Any person that shall carry away a Nun from her house shall suffer imprisonment for three years, and render damages to the house. This crime was formerly only inwombed in the Canon law, and now borne and brought forth into the condition of a Statute law, rather to vindicate the right of the free men, then in any respect had to the Clergy, 
Antiq. Brit. fo. 197.  who had been very bold with the liberty of the free men in this matter; for Archbishop Peckham not a year before the making of this law for this offence had excommunicated Sir Osborne Gifford, nor could he get absolution but upon his penance: first he was displed with rods three times, once in the open Church at Wilton, then in the marketplace at Shaftsbury, and lastly in the public Church there; then he must fast divers months. Lastly, he must be disrobed of all Military habiliments, viz. Gild Spurs, Sword, saddle, golden Trappings, and to use no brave garments, but russet, with Lamb and Sheep skins; to use no shirt, nor take up his order again until he had spent three year's pilgrimage in the Holy land: and unto this penance the Knight by oath bound himself. A strange power, and to repress which it was time for the people to look about them, and rather to punish delinquents themselves, then to leave it to the will of such men as never had enough.  
Concealment or neglect of apprehending of felons punished by fine and imprisonment. 
Concealment of Felons. West. 1. cap. 9   
In those ancient times pursuits of felons with hui and cry were made by Lords of manors, Bailiffs of liberties, Sheriffs, and Coroners, whereas now they are made by Constables. See more in the Chapter of peace. Escapes also were punished with fine and imprisonment: and in some places the Lord had the fine, in other places the Sheriff, and in some cases the King; 
West. 1. cap. 3.  yet it in no case was any fine assessed or taken till the trial before the Justices.  
Persons defamed for felony, 
Defamed Felons. West. 1. cap. ●  not submitting to trial by Law, shall be committed to close and hard imprisonment.  
It hath been accounted an extreme construction of this law, and questionless so it is, that this Law should warrant that punishment of pressing to death which hath been of later times more constantly used then former times ever knew of; for though it be granted that some trick of torture was sometimes used, even before the Norman times, and so might now and then leave some few examples after the Norman times, yet did the law never patronise such courses, especially if the death of the party suspected ensued thereupon, 
Miror cap. 1. sect. 9  but accounted it manslaughter. And the end of this law was not to put a man to death, but to urge him to confess; and so Briton saith, such as will not submit to trial shall be put to penance till he shall pray to be admitted thereunto; and therefore the penance then used was such as did not necessarily infer death; 
Briton cap. 4. sect. 24.  nor was it a final judgement in the trial, but only a means thereto: and therefore it might rather consist in denial of conveniences then inflicting of pain. Now in what cases it was used may be understood from the manner of the indictments in those days, whereof (besides appeals by the party) some were of particular fact done; others only of a fame: and it may be conceived that the course in the second was, 
Glanvil. lib. 10 cap. 1.  that if a man would not submit, but would stand mute, he was put to this kind of imprisonment for the discovering law was by Henry the third taken away. But if the delinquent was positively accused of a felony, and thereupon indicted by a witness of the fact, and then the delinquent would not submit to his trial by law, in such case the final judgement was to die O north, fame, etc. because in the one there was a fact affirmed against him by a witness, and in the other only a fame or suspicion, which is not pregnant against the life of a man. But this manner of indictment being now laid aside, and all proceed being upon a fact affirmed against the party, I conceive this law of no use at all in these days.  

bail. West. 1. cap. 15.  Bail shall not be allowed to Outlaws fore-jured, Thiefs taken in the act, notorious Thiefs, appealed persons, burners of houses, breakers of prison; false coiners, counterfeiters of the Broad-seale; prisoners upon excommunication, open malefactors, and Traitors against the King.  
The six first are in nature of persons attainted either upon their own confession, or such manifest evidence as in common reason cannot be gainsaid; all which were before this law under bail; yea the last of all, 
Glanvil. lib. 14. cap. 1.  although the most heinous of all was in the same condition. As touching breakers of prison, in these times it was felony, for what cause soever they were committed; and therefore their imprisonment was without bail, for who so makes no conscience of breaking the prison, his credit will little avail: yet it must be acknowledged that the Law imprisoned few without bail in those foregoing times, but in case of felony or execution; but afterwards the cases of commitment being ordinary, even in matters of mean process, and because men's credits waxing weak by the weakness of their estates now wasted by the civilwars; there fore in Edward the seconds time a law was made to restrain the felony in such cases, only to the breach of prison by such as were committed for felony. And as touching imprisonment upon excommunication, its manifest that within five years before the making of this law it was complained that such were set at liberty by the King's Writ de homine replegnando without the Bishop's consent. 
Addit. M. Paris.  But now the Clergy had gotten the day of the Law, which did much decline from that guard of imprisonment, but hated perpetual imprisonment. Nor was this complaint grounded upon any other law then that of the Canon, for the common law ever held the supreme cognisance of Excommunication within its own power, as upon the Writ de quare excomunicato may appear. Other crimes are yet also by this law allowed bail, such as are persons indicted of larceny before Sheriffs, etc. persons imprisoned upon slight grounds Receivers, and Accessories before felony, Trespassers, persons appealed by provers after the death of the approvers. If bail be granted otherwise, than the law alloweth the party that alloweth the same, shall be fined imprisoned, render damages, or forfeit his place as the case shall require. And thus the iniquity of the times was so great as it even forced the subjects to forgo that which was in account a great liberty to stop the course of a growing mischief.  

Spreaders of false news. West. 1. cap. 34.  Publishers of false news whereby discord or slander may arise between the King and his people, shall be imprisoned till he produce the relator.  
It is therefore an offence against the Crown to procure or maintain an ill conceit in the King of the people, or an ill conceit in the people of the King; and it's as well an offence against the Crown for the King to conceive ill of his people, as for them of him. But all must be grounded upon falsehood; for truth respects no man's parson; & all men are equally bound by that woe, if they call good evil, or evil good; although difference must be made in the manner of representation. And upon this ground of maintaining strife was a law made also against conspiracy to make or maintain indictment, 
33 Edw. 1.  suit, or quarrel, and it was likewise finable.  

Merton. cap. 3.  Redisseisors and post disseisors found upon verdict before the Sheriff, Coroners, and Knights shall be imprisoned.  
Formerly redisseisin was under no other Law then that of disseisin, but by this law made a matter belonging to the Crown, and tried before the same Judges that had the power of inquiry of all offences against the Crown. The penalty of imprisonment in this case was to be without bail, 
Marlbr. cap. 8.  but only by the King's Writ de homine replegiando; and yet even thus the penalty was not sufficient to restrain the offence, and therefote a law was made to abridge the power of that Writ, 
West. 2. cap. 26.  as touching such offender, and they became irremediable as touching their liberty by that Writ, besides that upon recovery had against them they lost double damages.  

Trespassers upon Parks. West. 1. cap. 20.  Trespassers in Parks and Fishponds convicted within a year and a day shall render damages, suffer imprisonment for three years, and give security of good behaviour for time to come. If any beasts be taken in a felonious manner he shall be proceeded against as a robber.  
From the times of King Steven the Lords and great men endeavoured to advance their power and greatness so high above the meaner sort of free men, as they made Kings continually jealous of their power. Castles had been a bone of long contention between them, but they being for the most part taken away the strife was about prisons and power to imprison offenders; and that also after much opposition they laid aside: yet the violence of these times being such, as (though felonies were somewhat dreaded) trespasses of the highest nature were little regarded, such as were riotous hunting in their Parks, and fishing in their waters. The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing; but this was also denied them, 
Merton cap. 11.  though by Henry the third in his first time, when as yet the government was not worsted by projects of arbitray power or corrupt counsels of foreigners, nor himself a man able to sway with the Lords in matters that were of doubtful prerogative. And to speak indifferently its better for the liberty of the subject, that the power of imprisonment should be regulated only by the Kings Writ ordered by law, then by the warrants of great men, especially in their own cases; and therefore in this matter the King's prerogative was a patron to the freemens liberty. Nevertheless these great men give not thus over their game, for though in times of public calamities little place is left for pleasure to any man; yet when times are grown to more quiet, pleasure revives, and the great men renew their motion; and though they could not obtain prisons to their own use, as they endeavoured at the meeting at Merton; yet now they obtain the King's prisons to the use of a Law that was as good as their own, and thereby satisfied their own displeasure for the loss of their pleasure. And yet this law sufficed them not, but they obtain a further privilege, 
An. 21. Edw. 1.  that such persons as are found so trespassing, and refusing to submit, may be killed without peril of felony.   

CHAP. LXX. Of the Militia during these Kings reigns.  
THe Soldiery of England may be considered first in regard of the persons. Secondly, their arms. Thirdly, their service. The persons were as formerly, not only such as were milites or tenants in Knight service, but also such as served at the plough; and concerning them both it is to be considered what the law made by Edward the second holdeth forth.  
All such as ought to be Knights and are not, shall be distrained to undertake the weapons of Knighthood, 
Stat. de Milit. 1 E. 2.  if they show not cause to the contrary.  
Regularly all tenants by Knightservice ought to be Knights, but de facto were not; so as in these times there was a further work to make a man a Knight then his bare tenure; for such only were milites facti, who had both Lands sufficient to maintain the Arms and state of a Knight; and also a body fit to undertake the service in his own person, and whereof he had given sufficient proof in the field. Others that had Land either had not sufficient maintenance or not habiliments of person, and as not expected were laid aside; of this sort were many by reason of the late civil wars, in which they had much impaired both their bodies and estates. This rendered the strength of the Kingdom and Militia so much decayed and the minds of men so weared that they began to love ease before the times would brook it, and a cessation from Arm before they had any mind to peace. The Parliament espied the danger, & how necessary it was for the people to be well armed in these times of general broil; and upon that ground allowed this law to pass, that all such as had Lands worth 20 li. yearly besides reprisals should be ready not to be Knights (nor under the favour of others is there any ancient precedent to warrant it) but to find or to enter the field with the Arms of a Knight, or provide some able person to serve in their stead unless they were under 21 years of age, and so not grown up to full strength of body; nor their lands in their own possession, but in custody of their Lords or guardians. Nevertheless of such as were grown to full age, yet were maimed impotent, or of mean estate, and tenants by service of a Knight, it was had into a way of moderation, and ordered that such should pay a reasonable fine for respite of such service; nor further as concerning their persons were they bound. But as touthing such that were under present only, and not perpetual disabilities of body upon them incumbent, as often as occasion called they served by their deputies or servants: all which was grounded not only upon the law of Henry the second, but also upon common right of tenure.  
The arms that these men were to find are said to be those belonging to a Knight, which were partly for defence and partly for offence; of the first sort were the Shield, the Helmet, the Hauberk or Breastplate or coat of mail: Of the second sort were the Sword and Lance; And unto all a horse must be provided. These Arms especially the defensive have been formerly under alteration, for the Breastplate could not be worn with the coat of mail, and therefore must be used as occasion was provided of either; and for this cause the service of a Knight is called by several names; sometimes from the horse, sometimes from the Lance, sometimes from the Helmet, and not seldom from the coat of mail.  
The power of immediate command or calling forth the Knights to their service in its own nature was but ministerial and subservient to that power that ordered war to be levied: and therefore as in the first-Saxon government under their Princes in Germany, so after under their Kings, 
Tacitur.  war was never resolved upon, but if it were defensive, it was by the counsel of Lords; if offensive, by the general vote of the grand Council of the Kingdom: so by virtue of such order either from the Council of Lords or grand Council the Knights were called forth to war, and others as the case required summoned to a rendezvouz; and this instumentall power regularly rested in the Lords, to whom such service was due; and the Lords were summoned by the Lord Paramont, as chief of the fee of which their tenants were holden, and not as King or chief Captain in the field; for they were not raised by Proclamation, but by summons issued forth to the Sheriff, with distress; and this only against such as were within his own fee, and held of the Crown. The King therefore might have many Knights at his command, but the Lords more, and if those Lords failed in their due correspondency with the King, all those of the inferior orb were carried away after them, so the King is left to shift for himself as well as he can; and this might be occasioned not only from their tenors by which they stood obliged to the inferior Lords, but probably much more by their popularity which was more prevalent by how much Kings looked upon the Commons at a further distance in those days, then in after times, when the Commons interposed intentively in the public government. And thus the Horsemen of England becoming less constant in adhering to their Sovereign in the field, occasioned Kings to betake themselves to their foot, and to form the strength of their battles wholly in them, and themselves on foot to engage with them.  
One point of liberty these Soldiers by tenure had, which made their service not altogether servile, and that was that their service in the field was neither indefinite nor infinite, but circumscribed by place, time, and end. The time of their service for the continuance of it was for a set time, if it were at their own charges: and although some had a shorter time, yet the general sort were restrained to forty days. For the courage of those times consisted not in wearying and wasting the Soldier in the field by delays, and long work in wheeling about, and retiring, but in playing their prizes like two combatants of resolution to get victory by valour, or to die. If upon extraordinary occasions the war continued longer than the tenant served upon the pay of the common purse. The end of the service of the Tenant (viz. their Lord's defence in the defence of the Kingdom) stinted their work within certain bounds of place, beyond which they were not to be drawn, unless of their own accord: and these were the borders of the Dominion of the Crown of England, which in those days extended into Scotland on the North, and into a great part of France on the South. And therefore the Earl Martial of England (being by Edw. 1. commanded by virtue of his tenure to attend in person upon the Standart under his Lieutenant that then was to be sent into Flanders, which was no part of the Dominion of England) refused, and notwithstanding the King's threats to hang him, yet he persisted saying he would neither go nor hang. Not only because the tenants by Knight service are bound to the defence of their Lords persons and not of their Lieutenants; but principally because they are to serve for the safety and defence of the Kingdom; and therefore ought not to be drawn into foreign Countries. Nor did the Earl marshal only this, 
Walsing. fo. 69. & 71.  but many others also both Knights and Knights fellows, having twenty pounds per annum; for all these with their arms were summoned to serve under the Kings pay in Flanders. I say multitudes of them refused to serve, and afterwards joined with the rest of the Commons in a Petition to the King, and complained of that summons, as of a common grievance, be cause that neither they nor their ancestors were bound to serve the King in that Country, and they obtained the Kings discharge under his broad Seal accordingly. The like whereunto may be warranted out of the very words of the Statute of Mortmain, 
Stat. Mortm. 7 Edw. 1.  which was made within the compass of these times, by which it was provided that in case Lands be aliened contrary to that Statute, and the immediate Lords do not seize the same, the King shall seize them, and dispose them for the defence of the Kinodome, viz. upon such services reserved as shall suit therewith, as if all the service of a Knight must conduce thereto; and that he is no further bound to any service of his Lord then will consist with the safety of the Kingdom. This was the doctrine that the sad experience of the later government of Kings in these times, had taught the Knighthood of England to hold for the future ages.  

Stat. de Militibus.  No tenant in ancient demesnes, or in Burgages, shall be distraimed for the service of a Knight.  
Clerks and tenants in Socage of other Manors then of the King shall be used as they have been formerly.  
Tenants in ancient Demesne and tenants in Burgages are absolutely acquitted from foreign service; the one because they are in nature of the King's husbandmen, and served him and his family with victual: the other because by their tenure they were bound to the defence of their burrow, which in account is a limb or member of the Kingdom, and so in nature of a Castle guard. Now as touching Clerks and tenants in Socage holding of a subject they are left to the order of ancient use appearing upon record. As concerning the Clergy, its evident by what hath been formerly noted, that though they were importunate to be discharged of the service military, in regard that their profession was for peace, and not for blood, yet could never obtain their desire; for though their persons might challenge exemption from that work, yet their Lands were bound to find arms by their deputies, for otherwise it had been unreasonable that so great a part of the Kingdom as the Clergy then had should sit still and look on, whiles by the law of nature every one is engaged in his own defence. Nor yet did the profession of these men to be men for peace hold always uniform; some kind of wars than were holden sacred, and wherein they not only adventured their estates, but even their own persons; and these not only in defensive way, but by way of invasion, and many times where no need was for them to appear. Tenants in Socage also in regard of their service might plead exemption from the wars: For if not, the plough must stand still, and the land thereby become poor and lean: Nevertheless a general service of defence of the Kingdom is imposed upon all, and husbandmen must be soldiers, when the debate is who shall have the Land; in such cases therefore they are evocati ad arma to maintain and defend the Kingdom, but not compelable to foreign service, as the Knights were whose service consisted much in defence of their Lord's person in reference to the defence of the Kingdom: and many times policy of war drew the Lords into Arms abroad to keep the enemy further from their borders, and the Knights then under their Lords pay went along with them; and therefore the service of Knighthood is commonly called servitium forinsecum. Of these Socagers did arise not only the body of English Footmen in their Armies, 
Concil. Brit. 406.  but the better and more wealthy sort of them found arms of a Knight, as formerly hath been observed, yet always under the pay of the common purse; and if called out of the Kingdom they were mere volunteers; for they were not called out by distress as Knights were, because they held not their Land by such service; but they were summoned by Proclamation, and probably were mustered by the high Constables in each Hundred, the Law nevertheless remaining still entire, that all must be done not only add fidem Domini Regis, but also Regni; which was disputed and concluded by the Sword: for though King's pretended danger to the public, often times to raise the people; yet the people would give credit as they pleased: or if the King's title were in question, or the people's liberty, yet every man took liberty to side with that party that liked him best; nor did the King's proclamation sway much this or that way.  
It's true that precedents of those times cry up the King's power of arraying all ships and men without respect, unless of age or corporal disability: but it will appear that no such array was but in time of no less known danger from abroad to the Kingdom then imminent, and therefore might be wrought more from the general fear of the enemy, then from the King's command; and yet those times were always armed in neighbouring Nations, and Kings might have pretended continual cause of arraying. Secondly, it will no less clearly appear, that Kings used no such course but in case of general danger to the whole Kingdom, either from foreign invasion, as in the times of King John, or from intestine broils, 
21 E. 1. rot. 81.  as in the times of Henry the third, and the two Edward's successively: and if the danger threatened only one coast, the array was limited only to the parts adjacent thereunto. Thirdly, it seemeth that general arrays were not levied by distress till the time of Edward the first, 
23 E. 1. Memb. 5.  and then only for the rendezvouz at the next Sea coast, and for defence against foreign invasion, in which case all subjects of the Kingdom are concerned by general service: otherwise it can come unto no other account then that title prerogative, and therein be charactered as a trick above the ordinary strain. Fourthly, those times brought forth no general array of all persons between the ages of sixteen years and sixty, that was made by distress in any case of civil war, but only by Sheriff's Summons; and in case of disobedience by summons to appear before the King and his Council; which showeth that by the common law they were not compelable or punishable. Lastly, though these arrays of men were sometimes at the charge of the King, and sometimes at the subjects own charge, yet that last was out of the road way of the Subjects liberty, as the subsequent times do fully manifest. And the like may be said of arrays of ships, which however under command of Kings for public service, were nevertheless rigged and paid out of the public charge. The sum of all will be, that in cases of defence from foreign invasion Kings had power of array according to the order of Law; if they exceeded that rule, it may be more rightly said they did what they would, than what they ought.   

CHAP. LXXI. Of the Peace.  
War and peace are two births by several ventures, and may like the day and night succeed, but can never inherit each to other; and for that cause they may claim to belong to one father, and that one and the same power should act in both: and yet it's no good maxim that he that is the chief Commander in war ought to be the chief in the order of peace. For it naturally befalls that war, especially that which we call civil war, like some diseases in the body does rather breed ill humours than consume them, and these must be purged by dieting the State, and constant course of justice, unto which the rugged waves of war have little or no affinity if not enmity: Nevertheless the wisdom of our ancestors thought it most meet to keep their Kings in work as well in time of peace as of war; and therefore as they anciently referred the principal care thereof to the Lords, who together with certain select persons in every County did administer justice in several iters or circuits: so when Kings had once gotten the name of being chief in civil affairs as they had it in martial; they soon left the Lords behind them (who also were willing enough with their own ease) and had the name of doing all notwithstanding it was done by advice of the Lords, and directory of Ministers or commissioners thereto deputed. And thus that peace which formerly passed under the titles of Pax Domini, pax vice comitis, it is pax Regni, became by eminency swallowed up in that which was called the King's peace, and the Justices called the King's Justices, and himself flattered into that title of Fountain of Justice, which belongeth only to him that is The Most High, or Chief Lawgiver.  
The manner how this honourable care of the safety and peace of the Kingdom was employed, may be referred to a double consideration, the one in execution of justice upon delinquents, the other in preventing occasions of offence or delinquency, by means whereof the public peace might be endangered. The first was acted diversely according to the present sense of affairs; for what was at first done by the Princes in their circuits, 
Tacitus.  with one hundred of the Commons called Comites, and that done per pagos vicesque was afterwards done by itinerant Judges sent from the King for the greatest matters, and by Lords in their Leets, Governors, or chief Magistrates of Towns in their courts, and Sheriffs in their Tornes, as Judices stati for the ease of the people in matters of less moment. I say I conceive it was in the Torn, for I suppose no emergent court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve years of age at the same, 
52 Hen. 3. Marlb. cap. 25.  and for the same cause it seemeth that one certain Torn every year was holden for inquiries of homicide, unto which all above twelve year of age were to come except Barons, Clergy, and women, or otherwise all such had been bound to attendance on every Torn. Nevertheless the work of the Tornes continued not to hear and determine as anciently they had done. For in Henry the thirds time, and formerly, divers men had prisons to their own use, some as Palatines, 
Mitor cap. 2. Sec. 9  other as Lords of Franchise, and others by power and usurpation, and had the benefit of all fines incident; and by this means many were fined that deserved it not, 
Mag. cart. cap. 19  and some also that deserved worse: to prevent which evil Henry the third took away that power of holding Crown-pleas. 
Glocest. cap. 8. West. 1. cap. 3.  And Edward the first took away their power to determine escapes, and left them only the power of inquiry, and to certify at the next coming of the Justices.  
But these injurious times had holden too long to be forgotten, or laid aside by such cool pursuit. Men were still ordinarily imprisoned, and so continued oftentimes, till the coming of the Justice's itinerant. For whereas in case of bloodshed the Writ de odio & gratia was a remedy; the other had no remedy but by procuring a Commission of Oyer and terminer, which ordinarily was a cure worse than the hurt. 
Stat. Wint. 13 Edw. 1.  As a remedy hereof Edward the first found out the new way of making Justices of peace, as may appear by the Statute at Winton, which law being purposely made for the conserving of the peace, providing for penalty of crimes already committed (as well as for the suppressing of future) ordaineth that offences against that Law shall be presented to Justices assigned to inquire thereof; and though these at the first might be itinerant, yet it soon made way to resiant. And before that Statute it seemeth the King had found out the way, 
Coke Inst. 4. p. 176  if that note be true which is left revived into memory by that honourable reporter, which relating to the sixth year of Edward the first saith, that then prima fuit institutio justiciariorum pro pace conservanda. And yet some semblance there is that it was yet more ancient, even in the time of Hen. 1. if I mistake not the sense of that clause in his laws concerning vagabonds; he ordereth that they shall be carried justiciae quae praeest, 
Hen. 1. cap. 58.  although the language be not so Clerkly as to speak the sense out. Now though their work as yet was but in trial, and they were only trusted with power of inquiry, yet it induced a new way wherein the Sheriff was not so much as entrusted to intermeddle, and which not only intermitted the course of his proceed in such matters, but also led the way to the dispoiling of the Sheriffs Torn, and Lords Leets, of that little remainder that was left them of judicatory power in matters that were against the peace, and made their inquisitory power less regardful; and eased the Justice's itinerant of much of their work in regard they were speedily to certify up to the King, and so these matters should be determined in Parliament, according as those Justices were elected in Parliament, who as it seems were jealous of giving the power of determining those offences into any sudden hand. To sum up then the first part as touching the punishment of offences against the peace, the wheel is now in the turning, the Leets and Tornes begin to be slighted, the labour of the Justice's itinerant lessened, the Commissions of Oyer and terminer difused by the bringing in of a new order of Justices for the peace especially appointed. And the Parliament as the supreme providors, left as the reserve for the asserting and maintenance of the same, albeit that under it the power of determining, much rested upon Justices or Judges that attended the King's court, after that the Common pleas were settled and confined to a certain place.  
The preserving of the peace for the future consisted in preventing and suppressing riots, routs, unlawful assemblies, and in apprehending and securing of such as were actors and contrivers of such designs, and other malefactors. And herein we are to consider, 1. The Laws. 2. The means. 3. The executive power. Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the peace rested in the Parliament, although endeavour possibly might be used to settle the same in the sole order of the Kings own person; and therefore we find not only the assize of Arms, but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings, predecessors to Edward the second who first that I can find put the same into the force of a law by Parliament, finding by experience that Proclamations may declare the King's mind, but not command the people's wills, although peradventure the thing enjoined was of ancient use, and little inferior to custom, or Common law. Such are the distempers of civil broils that bring up peace in the rear as a reserve when their own strength is wasted, rather than out of any natural inclination thereto. A brief recollection of the laws thus ensues,  

Stat Wint. 13 Edw. 1. cap. 1.  In case of Robbery or felony committed, and the delinquent be not forth cemming or discovered, the County or Hundred shall answer the damages.  
Of this more may appear from the Norman and Saxon laws: the intent appeareth by the law itself to stir up the people to use all means by pursuit with hui and cry, and making inquisitions of the fact with all speed, in Townships, Hundreds, Franchises, and Counties.  

cap. 2.  Persons suspected shall not be entertained or harboured by any inhahitant, unless He will undertake for him.  
Of this also formerly both in the Norman and Saxon laws.  

cap. 3.  Walled Towns shall keep their gates shut from Sun set to Sun rising. The like observed in Cities, Burroughs, and Towns, from the feast of Ascension to Michaelmas.  
The power of the watch was great: it might apprehend any passenger, and stay him all night; and if he be a suspected person he is to be committed to the Sheriff; and if an escape be made, the party is to be pursued with hui and cry. These two last Chapters were in effect in Henry the thirds time in course by way of the King's command by Writ in the 36 and 37 years of his reign, with some more particulars concerning the same. 
M. Paris in Addit. & post. Adversar. cap. 4.   
High ways through every Lordship shall be kept clear on each side by the space of 200 foot from hedges, ditches, Bushes, and underwood.  
High ways herein intended are such as are from one Market Town to another, and in such were always preserved the public peace or safety, for the maintenance of commerce, and freedom of traffic, which is of such public concernment that it hath been of very ancient institution.  
Every man between the age of fifteen years and forty shall maintain Arms in his house, 
cap. 5.  according to the ancient Assize for the preserving of the peace.  
This Chapter brings into consideration the second thing propounded, viz. the means of preserving of the peace, which are two: First, by maintaining Arms. 2. By certifying defaults. In the first is to be considered the persons that are to be assessed; 2. The Arms; 3. The end. The persons to be assessed to Arms are indefinitely set down, and comprehend all sorts, as well bond as free, and others; for such are the expressions in the Commission of Henry the third. 
36 Hen. 3. M. Paris post adversaria. Hoveden.  But by the Assize of Henry the second none were to be armed but free men, and they worth sixteen or ten Marks in goods at the least: yet their ages are limited; by this Law they must be between fifteen years and forty; but by the Commission in Henry the thirds time all between fifteen and sixty years of age were to be armed. King John arrayed all sorts, free, bond, and all others that have Arms: or aught to have or can carry Arms; 
M Paris Anno 1213.  and it seems by what hath been formerly noted, that those that were younger than their tenure would bear them out, were accepted into service if they would offer themselves; but by these courses they though under one and twenty years of age were not only accepted, but compelled to war. 
Hoveden. Hen. 2. M. Paris addit.  Under this title we may also touch upon the persons that were the instruments to array these men, or rather to arm them; and these were Justices itinerant, or one or more Commissioners, such as the King found most meet for the service; and unto these were Commissions with instructions sent; and sometimes Writs were directed only to the Sheriffs to take with them twelve Knights of the County, 
M. Paris. post. adversaria.  and to go into every Hundred and call before them all such persons as by the law ought to be assessed at Arms, and to cause them to be sworn to find and maintain Arms in such manner as by the Law they then should be, or formerly were assessed; and sometimes the establishment of Arms were set down in those Writs, and sometimes published by Proclamation. 
M. Paris Anno 1253. & 1256.  For Kings found all means little enough to prevail to bring in alteration of Arms, and of their service, which was a thing not only troublesome but chargeable, and whereunto they could not easily prevail to bring the freemen to consent; and therefore sometimes the endeavours of Kings in such cases did not only meet dilationem, 
M. Paris An. 1253.  but also deletionem, as the Historians words are, until the way was found out to declare an establishment by Parliament, by this Statute made at Winton.  
Now for the nature of the establishment we are to consider that the people of England were distinguished according to their teanures, 
Ll. Gulielm. 58.  into such as held by Knightservice, and such as held by Soccage; and that none but those being freeholders could be charged to find arms according as by the Laws of the Norman Conqueror may appear. The establishment of Arms for the Knights were established by their tenors in certainty, and therefore no need was either of assessment or oath to tie them to find such Arms; but all the difficulty was for such as were not bound by other tenure then as free born subjects, all of whom do owe to their Country defence and so questionless had liberty to provide themselves of such arms as were by common and constant use held most advantageous against the common enemy, and for the public defence. And that these were put in certainty may appear by the Law of King William formerly noted, and by some instances in the Saxon Laws anciently used; 
Ll. Aethelst. c. 16.  amongst others that Law of Aethelstane, that for every plough every man should find two complete horses. And another order of Aetheldred nigh 80 years after differing from it assessed upon every eight hides of Land a Helmet and a coat of Mail; and the Historian tells us that a Hide is a plough land, 
Huntingdon. An. 1008. Ll. Canut. 97.  or so much land as one plough can keep in tilth one whole year; and the relief of the Noblemen of all sorts and ranks in Horses, Helmets, coats of Mail, Lances, Shields, and Swords, the meanest of all which degrees being called Mediocris Thainus, yielding a relief equal to the Arms of a Knight in the times whereof we now treat, viz. one Horse, one Helmet, one coat of Mail, one Lance, one Shield, one Sword; all comprehended under arma sua, as if he had a certain proper Arms; and the Laws concerning the forfeiture of Arms do in effect affirm the thing, viz. that all men were armed; yet probable it is that Laws were not then so often made for the enforcing this or that particular sort of Arms, in regard that till the Normans time this Island was troubled, but seldom with any enemies from foreign parts that brought any new sorts of weapons into fashion, the Danes and Norwegians being no other than an old acquaintance of theirs. Neither were the Saxons as yet tamed by any enemy so fare as to beg a peace, albeit that the Danes had gotten them under. But after the Norman times the English being somewhat overmatched in war inclined more to Husbandry, and began to lay aside their regard of Arms; and this occasioned the Kings to make assessments of Arms; yet having regard to the ancient course of the Saxons, saving that they urged the use of the Bow more then formerly was used, and thereby taught the conquered to conquer the conquerors in future ages. Of these sorts of assessments before this Statute at Wintin I find but two; the first made by Henry the second, and the other by Henry the third, which together with that of this Statute I parallel thus together in their own words.  
Hen. 2. Hen. 3. Stat. Wint.  Lands Goods  Knights fee 15 Librat 60 Marks 15 li. land. 40 marks goods. 

Loricam  
Caffidem  
Clipeum  
Lanceam   

Loricam  
Capellum ferri  
Gladium  
Cultellum  
Equum   

Loricam  
Capellum ferri  
Gladium  
Cultellum  
Equum   

Hauberk  
Shapell de fer  
Espee  
Cotell  
chival.   16 Marks 

chatels  
rents   10 Librat 40 Marks. 10 li. lands 20 marks goods 

Halbergellum  
Capelletum ferri  
Lanceam   

Halburgettum  
Capellum ferri  
Gladium  
Cultellum   

Halbertum  
Capellun ferreum  
Gladium  
Cultellum   

Hauberk  
Shapell de ferr  
Espee  
Cotell   10 marks 

chatels  
rents   100 s. 20 marks 100 s. land 

Wanbais  
Capelletum ferri  
Lanceam   

Purpunctum  
Capellun ferreum  
Gladium  
Lanceam  
Cultellum   

Purpunctum  
Capellun ferreum  
Gladium  
Cultellum   

Purpoint  
Shapell de ferr  
Espee  
Cotell    Betwixt 5 l. & 40s. 9 Marks. Betwixt 5 l. & 40 s.  

Gladium  
Cultellum  
Arcum & sagit.   

Gladium  
Arcum & sagit.  
Cultellum   

Espee  
Ark & setes  
Cotels    under 40 s. under 9 marks to 40 s. under 40 s.  

Falces  
Gisarmas  
Cultellos, etc.   

Falces  
Gisarmas etc.   

Faulx  
Gisarmes  
Cotells      under 20 marks goods.    

Espees  
Cotels.    
I have thus impaled these three that the Reader may the better discern how they relate each to other, and so may the better understand the matter in the sum. And I must explain three or four words in them as they are set down, before I can bring up the conclusion, because the mistake of the sense of the words hath made some mistake the intent of the thing, and force the same to an unwarrantable issue. 
Lipsius' de milit. Rom. lib, 3. Dialog. 6.  Lorica signifies that piece of Armour that defends the breast or forepart of the body, and sometimes is made of plates of Iron, of which sort I conceive those of the old Germans were (whereof the Historian maketh mention, 
Tacitus.  pauces loricae he saith the Germans had few Arms of defence of their foreparts, and fewer Helmets or Head-pieces) for otherwise if they had Iron defences for their heads they would not have been content with defences made of Leather for their foreparts, as in the first rude times they might have been: 
Civer. Germ. p. 339. 34.  Sometimes it's made of links of Iron, and commonly is called a coat of Mail; but I conceive it cannot be so meant in the assessments of Henry the second and Henry the third, because that those of the second degree are said that they ought to keep Haubergettum, or Halburgellum, or Haubertum; all which are but several dialects of one name, and are taken for a coat of Mail: and therefore by the diversity of names in one and the same assessment I do conclude that the Armour was not of one and the same fashion. But it's evident that by Hauberk in the assessment of the Statute at Wint. is meant a coat of Mail, and is never taken for a Breastplate or Gorget, as hath been taken upon trust by some that build more weighty conclusions upon that weak principle, than its able to bear; and for the truth hereof, as the word is a French word, so I appeal to all French Authors, and shall not trouble the reader with the notation of the word, or further about the meaning thereof. In the last place, as great mistake is that also of the word Shapell de ferr, which is taken by some to betoken a breastplate of Iron. For the truth whereof the Reader may consider the Latin word Capellum or Capelletum, and he shall find that it is an Iron cap, or an ordinary Head-piece: and in the Assize of Henry the third it holds the place of Cassis in the Assize of Henry the second; for the manner of all these let the Reader view the sculptures of the several Norman Kings armed for the charge in the beginning of their several reigns, as they are represented in Speeds History. It may also be conceived that there is as much mistake of that weapon which is called cultellum or cotell, whiles they translate it by the word Knife, for though it be true that it is one signification of that word, yet it appears not only by this law that it was a weapon for a Knight in war, but in use at Torniaments, as by that Statute that forbids the use of a pointed Sword, or pointed Cottell, a Battoon, or a Mace, at that sport: and therefore it may seem to be some weapon of greater use, either a Cotellax or such like weapon; otherwise to enjoin the finding of a Knife to a man as an offensive weapon against armed men in battle would serve to no use at all.  
Now concerning the difference between the several Assizes aforesaid, it consisteth either in the number of the several degrees or ranks of those that are assessed: or secondly, in the manner of their valuation: or lastly, in the particulars of their arms assessed upon them. As touching the degrees in Henry the seconds time, they were but three, in regard that he only assessed freeholders'; and certainly that was the ancient Law, as by the law of the Conqueror and other Saxon laws formerly mentioned may appear. But Henry the third taking example of King john who was the first founder of general arrays charged all but such as were men of nothing; albeit I find not that such as were of the inferior degree were sworn to those Arms, but rather allowed to have them. And though the Statute at Winchester holdeth to the same degrees in Lands, yet in the value of goods there is some difference in favour of them that only have stock, and no freehold. Secondly, there is some difference in the manner of valuation of Lands with Chattels; and therein the Statute at Winton favours the personal estates more than Hen. 3. and he more than Hen. 2. and yet all of them pretend one rule of ancient custom; I believe they mean that they had it in their eye, but not in their heart: for they would come as nigh to it as they could, and yet keep as fare from it as they durst. Thirdly, as touching the difference of the Arms between these three assessments, it seems so small as in this they are most of all one. For wherein Hen. 2. leads, both Hen. 3. and Edw. 1. do imitate, saving that they add the Horse and Sword, which questionless was to be understood as a granted case, that the complete Arms of a man could not be carried and managed without a Horse, nor defended without a Sword. As touching other alterations, it might be done upon good advice, as not being deemed meet that such as were no Knights but in estate, should be armed in every respect like as the Knights were. And thus we have an ancient custom of maintaining Arms by every free man, for the defence of the Kingdom, first made uncertain by the avarice of Kings and negligence of the free men, and brought into an arbitrary charge; at length reduced to a certainty upon all sorts of inhabitants by a Statute law (if so it then were) unto which every man had yielded himself bound by his own consent. But to what end is all this? I said it was for the defence of the Kingdom, and so it was in the original; and yet also for the safety of the King in order thereunto, and for the safety and maintenance of the peace of every member of the whole body. This in one lump thus will not down with some who will have this assessment only to be for keeping of the peace against routs and riots, but not sufficient not intended to be supply for war, when Edward the first calls for it, because Edward the first shall not have his power confined within the compass of a Statute, but to be at liberty of array as he should think meet; and it's not to be denied but the words of this Law run thus, viz. That the intent thereof is for preserving of the peace; but those general words will not bear the power of a restrictive sense, for certainly the peace is as well preserved by providing against war as against riots; and against foreign war as intestine mutinies: and that the Statute intended the one as well as the other will appear, because it was made in relation to former precedents of Henry the third, and they speak plainly that their intent was to strengthen the Kingdom against dangers from abroad; the words of the Historian are clear, that Henry the third charged all that had 15 libratas terrae and upwards should undertake the Arms of a Knight ut Anglia sicut Italia militia roboraretur. 
M. Paris fo. 926  And because he had threats from beyond Sea by the defection of the Gascoines, therefore he caused Writs to issue forth throughout the Kingdom that secundam pristinam consuetudinem, 
M. Paris fo. 864  assessment of Arms should be secundum facultates; and in one of the Writs published by the Historian the express assessment of Hen. 3. formerly mentioned is particularly set down. 
Vid. post Adversaria. M. Paris.  Nor are these Arms thus assessed so slight as men would pretend, for the Arms of the first rank were the complete Arms of a Knight, and their estates equal thereunto; for those 15 libratae terrae amounted unto 780 acres of Land, as the late publisher of Paris his History hath it; and is very nigh the reckoning of Henry Huntingdon, who (as hath been mentioned) layeth a Helmet and coat of Mail unto eight hides of Land, which according to Gervase of Tilburies' account cometh to 800 acres, 
Cap. penalt.  every Hide containing one hundred acres. These therefore were better than Hoblers. And the succeeding ranks found Arms also proportionable to their estates, as considerable as the times could find for such as were of constant use, and might be supplied with other weapons as occasion served, and as they might be of most benefit for the service.  
Furthermore whereas it's said that the wisdom of the Parliament might be questioned if they intended no better provision against an enemy then against a thief or rogue, I should desire the consideration of those men, whether are those thiefs and rogues in Troops or bodies and well armed, or are they a sort of scattered outlaws lightly armed to fly away, when they have have gotten the prey? If they were in the former posture, I pray what difference in point of difficulty of suppressing between them and so many enemies? and if it was discretion in the Parliament to make this provision against the one, certainly these with the Knighthood of the Kingdom with as much discretion will be sufficient provision against the other. But if these be looked upon in the latter sense, I fear the discretion of the Parliament would have been much more questioned in arming all men that have any ability to suppress Thiefs and Rogues, against which the ordinary watch and ward of the Kingdom was an ancient and approved remedy, and sufficient safeguard. And I would fain know of these men whither it be for the safety of Edward the first, or any other King to arm the whole body of the people, especially in times of jealousy for suppressing of Thiefs and Robbers when as it may be done by a guard of known men in every County, with much more ease and less charge to the people.  
Lastly, whereas it's endeavoured to make this Statute but a temporary provision and taken up for the present condition of affairs when Thiefs and Robbers went with great strength, and in multitudes. This might be I grant of some efficacy, if it had been introductio novi juris; but it being grounded upon a former custom, the ground of that custom (which was defence of the Kingdom) must be the warrant of the Law; otherwise the present inconvenience might be remedied by a present order, and needed not the help of a Law that should rest upon former custom, or provide for future generations. Nevertheless if all be granted, viz. that this Statute is but a present order, that the Arms therein are too slight to resist an enemy; and the end thereof was only to enable the Kingdom against Thiefs and Robbers; yet could not Edward the first pretend to have any power to assess Arms at pleasure upon occasion of war for the defence of the Kingdom; nor is there any precedent in story that countenanceth it, seeing Henry the third and Henry the second in their course used the rule secundum facultates, as had been formerly observed; and the rule foregoing tended only to freemen and their Lands. Nor did King John disclaim the same, but pursued it (and yet if there be any precedent of prerogative in story which King John had not, that King will be looked upon as a King of wonderment.) I say King John pursued it when he was in the strength of his distemper; threatened by the Pope, provoked by the French King now ready in the field, vexed by his people, and himself scarce himself, summons to defend himself, themselves, 
M Paris An. 1213.  and the Kingdom of England, all men that ought to have Arms, or may have Arms, and such as have no amres; and yet arma habere possint, let them also come ad capiendum solidatas nostras; and accordingly there came a vast number not only of the Armed men, but of the unarmed multitude, who afterward were sent to their own home when victuals failed. Hitherto therefore King John not above three years before his death held himself to the assessment to Arms only of such as had Lands; and at this time of exigency others unarmed were summoned to take Arms from the King with their pay, or otherwise they must fight without weapons.  
I am now come to the last general point which concerneth the executive power of matters concerning the peace within this law, touching which the Statute enforceth this, that Constables in every Hundred and Franchise shall have the view of Arms, and shall present defaults against the Statute of Justices assigned, who shall certify the same to the King in every Parliament, and the King shall provide remedy; whereby it seemeth manifest that hitherto no law or custom was made against any for default of Arms, but only such as held by that tenure: and therefore they had a shift to cause them to swear to maintain Arms, and so might proceed upon defaults, as in case of perjury; and that the Parliament was still loath to set any certain rule for penalty, and absolutely declined it, and left it under a general periculo incumbente, which its likely men would rather eschew by obedience, than adventure upon out of a daring spirit, unless their case was very clear within the mercy of common reason; and therefore such cases were left to special order of the Parliament rather than they would deliver such a rod as determining power was over into any uncertain hand what ever. It is very true that by the opinion of some this also hath been controverted, as if all the executive power had been turned out of the Parliaments order into the directory of Edward the first, which thing reacheth fare; for then in order thereunto the whole Militia of the Kingdom must have been under his safe command: and whether it ever entered into the conceit of that King I know not, but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion, and so derive it unto his successors upon the words of a Statute de defension portandi armorum the English whereof I shall render out of the French, as followeth:  
It belongeth to us (viz. Edw. 1.) and from us by our Royal signory to defend force of Arms, and all other force against our peace at all times that we shall please, and to punish according to the laws and usages of this Realm, such as shall oppose, and to this they (viz. Lords and Commons) are bound us to aid as their good Lord, always when need shall be.  
Two things are concurrant with this, which is the body of the Statute (if such it be;) the one is the preface, or the occasion: and the second is the conclusion upon the whole body of the same. The preface first set down the inscription or direction of the Law; not to the people but to the Justices of his bench, and so it's in nature of a Writ or Declaration sent unto his Judges. Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty, which was had before certain persons deputed thereto: and it was accorded, that at the next Parliament Order shall be taken by common consent of the King, the Prelates, Earls, and Barons, that in all Parliaments treaties and other assemblies which shall be had in the Kingdom of England for ever after, all men shall come thereto without force, and without Arms, well and peaceably; and thence it recites that the said meeting at Parliament was had, and that there the Prelates, Earls, Barons, and Cominalty being assembled to advise upon this matter; nous eiont dit saith one copy, and nous eions dit saith another copy; so as whether this was the Declaration of the King unto the Parliament, or of the Parliament to the King is one doubt, and a principal one it is in such a case as this. Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the bench, and there enroled; and this is dated the 30. of October in the seventh year of his reign, which was Ann. 1279. So as if it were the Declaration of the King, than it implieth as if it were not very well accepted of the Parliament; and therefore the King would have it rest upon record in nature of a claim or protestando for saving the prerogative of the Crown. But if it were the Declaration of the Parliament the King held it so precious a flower, that fearing it should fade set it in a private Garden of his own, that it might be more carefully nursed against the blast of time; as if the Parliament had not assented thereto, (or if they did) meaned not to hold it forth to the world for future times to be a constant rule, but only by way of concession, to ease themselves of the present difficulty, in making a Law against wearing of Armour in ordinary civil affairs, and so referred it to the King's care to provide against imergent breach of the peace, as an expedient for the present inconveniences in affairs. And it will well suit with the posture of affairs then in course, for the Welsh wars were now intermitted, and a quiet of three years ensued; in the midst of which Soldiers having liberty to do nothing (and that is next to naught) but recreate themselves, used their wont guise, as if they were not dressed that day that they were not armed; nor fit for counsel, unless (as their ancestors) with weapons in their hands, nor worthy of the presence of a King under other notion then as a General in the field, and themselves as Commanders that are never a la mode; but when all in Iron and Steel. I say to make a Law that must suddenly bind men from riding or being armed when no man thought himself safe otherwise was in effect to expose their bare necks to the next turn of the Sword of a King that they did not overmuch trust, and the less in regard he trusted not them. I do not wonder therefore if the Parliament liked not the work, but left it to the King to provide for the keeping off breaches of the peace, and promised there assistance therein.  
Lastly, supposing all that is or can be supposed, viz. that the Parliament had given up the power of the Militia unto Edward the first, yet it was not to all intents, nor did it continue; for besides the Statute of Torniments, which showeth plainly that the ordering of Armour was in the power of the Parliament, and which in all probabilty was made after that law last beforementioned; the Statute at Winton made after this Law nigh six year's space ordereth the use of the Trained bands in maintaining the peace, and reserveth the penalties to themselves for any default committed against the said act. And therefore notwithstanding any thing that yet appeareth to me out of any Law or History, the chief moderatorship of war and peace within the Realm of England resteth hitherto upon the Parliament next under God, and in the King no otherwise then in order to the public, the rule whereof can be determined by no other Judge then that which can be intended to have no other respect then the public good; and which is the abridgement of the large volume of the Kingdom.   

A summary conclusion.  
ANd thus have I brought the shape of English government (rude as it is) from the first offspring of the Saxons through the rough waves of the Danish tempests, the rocks of Norman invasion; and the Quicksands of Arbitrary government under Popes and Kings to the Haven; much defaced it is I confess by the rage of time, and yet retained the original likeness in proportion.  
King's first (about the Norman times) joining with the Lords for their joint interest above the ordinary pitch had mounted each other too high to be Lords over free men; Then by flattering of the free men into their designs hovered above them all; but not being able to maintain their pitch so long as the Lords held together, stooped for a party amongst them and soon obtained their desire. For some Lords (more ambitious than others, and they again more popular than them) seek several interests: And thus Kings (aided by their party to a Supremacy which they were never borne to; and it by them into a pre-eminence above their Peers which neither law nor custom ever gave them) are of Moderators in the Council of Lords, become moderators of those Counsels; and so they obtained all that the Lords had, but no more. For though both they and the Lords abused their power over the free men by extorsion and opression as Lords over tenants; yet could they never prevail over them as free born subjects to gain their consent to give their right, or the law up to the King's beck; but still that remained arbiter both of King and people, and the Parliament Supreme expounder and Judge both of it and them. Other argument hereof there will be little need, 
Bract. lib. 2. c. p. 16.  besides what hath formerly appeared, than what we find in Bracton who wrote in the time of Henry the third, to this effect: God is superior to the King, and the Law by which he is made King, and his Court, viz. the Earls and Barons: Earls (according to their name Comites) are the King's associates, and he that hath an associate hath a master; and therefore if the King be unbridled (or which is all one) without Law, they ought to bridle him, unless they will be unbridled as the King, and then the Commons may cry Lo Jesus, etc. This was the judgement of that famous Lawyer of the State of an English King in Henry the thirds time, I shall add hereto a concurrent testimony of a Lawyer also in Edward the first time. Although (saith he) the King ought to have no equal in the Land: 
Miror Just. p 9  yet because the King nor his Commissioners (in case where the King intrencheth upon the right of any of his Subjects) can be both Judge and party; the King by right aught to have companions to hear and determine in Parliament all Writs and plaints of wrongs done by the King, the Queen, or their childrsn, and of those wrongs especially whereof otherwise common right cannot be had. Nor is this the opinion only of Lawyers, but it is the Law itself unto which the Royal assent was added, 
Edw. 2.  and the same sealed with an Oath in the solemn stipulation made by Kings at their Coronation with the people then present in the name of the whole body: the sum whereof is wont to be propounded to the King in this manner, 
Remonstr. Parliament. novem. l. 2. An. 1642.  though in a different Language.  
1. Will you grant and keep, and by your Oath confirm to the people of England the Laws and Customs to them granted by the ancient Kings of England your righteous and godly predecessors: and especially to the Clergy and people by the glorious King St. Edward your predecessor?  
The King's answer: I do them grant and promise.  
2. Will you keep to God and the Church, and the Clergy, and the people peace and concord sincerely according to your power?  
The King's answer: I will do it.  
3. Do you grant to hold and keep the Laws and rightful Customs which the Comonalty of your Realm shall have chosen, and to maintain and enforce them to the honour of God after your power?  
The King's Answer: I this do grant and promise.  
In few words the King promised to keep the laws already made, the peace of his Kingdom, and the Laws to be agreed upon by the commonalty: the same in subsistence with that of Henry the first, William the Conqueror; the Danish and Saxon Kings formerly had, and in the foregoing discourse observed: And thus is he led to the Throne in a Chain of Gold, a serious memorial of the King's duty as he is a man, and a glorious ornament to him as a King. If then the King be under the law in case of direction, as by stipulation he is bound, if he be likewise under the Law in case of transgression to be judged by his Comites or Peers. Hitherto certainly an English King is but Primus inter omnes, and not supra totum; and if at any time he skipped higher, he afterwards fell lower; for it was the lot of these times to have Lords that were bend to work the people to regard their own liberties, in which the Lords had first wrapped up their own claims. Thus comes the counsels of such as have been notoriously exorbitant to be scanned; and to bring these into frame, all run out of frame; the Baron's wars arise, and thrive according as interests do concentre more or less; the issue is like that of a drawn battle, wherein he that continueth last in the field is glad to be gone away, and so the Title is left to be tried upon the next advantage that shall arise.  
Yet had Kings gotten one step forwards to their design, which was that they now had to deal with a divided Baronage. It was the birth of ambition, and it was nourished by the same milk; for those that side with the King are become Magnificoes next to the King's person, and the sole managers of all the great affairs of State concurrant with their own designs underboard. But the other Lords are in account rural, standing further off, and looking on at a distance, are laid away as supurfluous: and as they themselves are out of the game of great men, so grow they mindless of their interest in the great affairs, yet of these there is diversity, for some sport themselves in their condition; others observe the irregular motions of those above, and watch their own time.  
This was the first advance of that society, which was afterwards called the privy-councel; being a company of choice men according to the Kings bend, unto whom the consideration of all the weighty affairs of the Kingdom is committed; but nothing can be concluded without the Kings fiat, which regularly should follow upon the premises, according to the major vote; but more ordinarily suiteth with that which best suiteth with his pleasure. And now are Parliaments looked on as fatal, or at the best, but as heavy dull debates, and inconvenient both for speed and secrecy; which indeed are advantages for weak and unwarrantable counsels, but such as are well grounded upon truth, and strength of reason of State care not to behold the clearest noonday, and prevail neither by speed nor secrecy, but by the power of uncontrolled Reason, fetched from truth itself. The grand Council of Lords also are now no less burdensome: For though they were not able to prevail against the private designs of an arbitrary Supremacy, yet do they hinder the progress, tell tails to the people, and blot the names of those that are of that aspiring humour; which once done, like that of Sisyphus they have no other end of there labour then their toil.  
Thus perished that ancient and rightly honourable Grand Council of Lords, having first laid aside the public then lost unity, and lastly themselves; besides the extreme danger of the whole body. For the sense of State once contracted into a Privy council is soon recontracted into a Cabinet council, and last of all into a Favourite or two, which many times brings damage to the Public, and both themselves and Kings into extreme praecipices; partly for want of maturity, but principally through the providence of God overruling irregular courses, to the hurt of such as walk in them.  
Nor were the Clergy idle in this bustle of affairs, although not very well employed; for it is not to be imagined but that these private prizes played between the Lords, Commons, and King, laid each other open to the aim of a foreign pretention, whiles they lay at their close guard one against another: and this made an Ecclesiastical power to grow upon the Civil, like the Ivy upon the Oak from being servants to friends, and thence Lords of Lords, and Kings of Kings: By the first putting forth it might seem to be a Spiritual Kingdom, but in the blossom which now is come to some lustre its evident to be nothing but a temporal Monarchy over the consciences of men; and so like Cuckoos laying their eggs in nests that are none of their own, they have their brood brought up at the public charge. Nevertheless, this their Monarchy was as yet beyond their reach; it was Prelacy that they laboured for, pretending to the Pope's use; but in order to themselves. The cripple espied their halting, and made them soon tread after his pace; he is content thty should be Prelates, without measure, within their several Dioceses and Provinces, so as he may be the sole Praelatissimo beyond all comparison; and undoubtedly thus had been before these times destroyed the very principles of the Church-government of this Kingdom, but that two things prejudiced the work: the one that the papalty was a foreign power, and the other that as yet the Pope was entangled with the power of Counsels, if he did not stoop thereunto. The first of these two was the most deadly Herb in the Pottage, and made it so unsavoury that it could never be digested in this Kingdom: For Kings looking upon this as an entrenchment upon their prerogative, and the people also as an entrenchment upon their liberties, both or one of them were ever upon the guard to keep out that which was without, and would be ruled neither by Law nor Council. And thetefore though both Kings and people yielded much unto the importunity of these men, and gave them many privileges whereby they became great; yet was their greatness dependant upon the law of the Land and vote of Parliament; and though they had the more power they nevertheless were not one jot the more absolute, but still the law kept above their top; I deny not but they in their practice exceeded the rule often and lifted themselves above their rank; yet it is as well to be granted that they could never make law to bind the Churchmen, much less the Laity, but by conjunction of the grand counsels both for Church and Commonwealth affairs; nor could they execute any Law in case that concerned the liberty or propriety of either, but in a Synodical way, or as deputed by the Parliament in that manner. And therefore I must conclude that in these times whereof we treat the principles of Church-government, so fare as warranted by law, were in their nature Presbyterial; that is, both in making laws and executing them; Bishops and Archbishops were never trusted with the sole administration of them, but in and by consent of Synods in which the Clergy and Laity ought to have their joint vote; and all power more or contrary hereto was at the best an usurpation coloured by practice, which was easily attained where there was a perpetual moderatorship resting in the Bishop, and over all the Pope; the King, Lords, and Commons in the mean while being buried in pursuit of several interests elsewhere.  
To make all semblable, the free men met with the sad influence of these distempers, as well from the King and Lords, as the Clergy. King's to save their own stake from the Pope, remitted of that protection which they owed to their Subjects, and let in upon them a flood of oppressions and extortions from the Romish and English Clergy, and so like a little ship cast out a barrel for the Whale to peruse till it gets away: but this changed no right. The Lords by their parties shattered them a sunder and dismembered their body by intestine broils. The Clergy more craftily making some of them free Denisins of the Roman See, and taking them into their protection whiles others of the free men at a distance were exposed as a prey to the continual assaults of those devouring times: all these conspired together to deface and destroy that ancient and goodly bond of brotherhood, the Law of Decenners, by which the free men formerly holden together like Cement in a strong wall, are now left like a heap of lose stones, or so many single men scarcely escaping with their skin of liberties, and those invaded by many projects and shifts in government of State affairs. So must I leave them until some happy hand shall work their repair both for time and manner, as it shall please that great and wise Master builder of the World.   
FINIS.   

The Table.  


ABbats page 229  
Abbeys quarter p. 242 

Not taxed or visited from foreign parts p. 244  
Vacancies ibid.  
Purveyance ibid.    
Aberemurder amongst the Saxons p. 99  
Accolites amongst the Saxons p. 28  
Accusation, witnesses amongst the Saxons p. 150  
Action amongst the Saxons p. 87  
Acquittaile vide Knightservice  
Administration, vide Intestate  
Adultery amongst the Saxons p. 42 

amongst the Normans p. 141  
after p. 234    
Advousions cognisance p. 178  
Aedeling p. 53  
Age, vide Infancy  
Aides after the Norman times 201, 278, 285  
Alderman p 53  
Alienations licence p. 183, 274  
Allegiance according to the Saxons p 86 

The Normans p. 151    
Amercements p. 250, 262  
Apostasy, punished by the Saxons p. 39 

after p. 194    
Appeals amongst the Saxons p. 86 

the Normans p. 151  
after p. 274    
Appeals to Rome p. 176 

settled p. 179  
to Ecclesiastical Courts p. 179    
Archbishops, vide Metropolitans.  
Arrays p. 305, etc.  
Arms assessment p 206 

vide Arrays.    
Austin the Monk, his coming and his actions p. 17, etc.    

B.  

Bail 195, etc. 269, etc. 290  
Banks, vide Bridges.  
Baron, vide Court.  
Bargain and sail of goods amongst the Saxons p. 107 

the Normans p. 143    
Barons wars p. 221, &c  
Bastardy amongst the Saxons p. 42  
Battle trial amongst the Saxons p. 90  
Batteries punished by the Saxons p. 100, 193  
Bigamists p. 247  
Bishops amongst the Saxons p. 25 

vide Prelacy: amongst the Normans; their power increased p. 123, etc.  
vide elections, their oath to the Pope p 184    
Basphemy punished by the Saxons p. 39, 98 

amongst the Normans p. 138    
Bloodshed, vide Manslaughter.  
Bridge's p 263  
Britons, their Religion and government 1 etc. 18 

conversion p. 3  
instructed in learning p. 6  
a Province ibid.  
the last that submitted to the papalty, and the first that shook it off p. 20    
Burgages amongst the Saxons p. 82  
Burghbote ibid.  
Burglary punished by the Saxons p. 101  
Burning of woods punished by the Saxons p. 101 

vide p. 195    
Burroughs Mag. cart.  
Burroughs English p. 106    

C.  

CAnnon-law p. 121 

vide Prelacy.    
Carriages p. 266, 267  
Castles, their use p. 117, 265, etc. 

abuse p. 166  
occasion of the first civil wars p. 209    
Castle guard, vide Mag. cart. p. 267  
the Cautione admittenda p. 182  
Chancery p. 285  
Chancemedly p. 287  
Church, maintenance by the Saxons p. 29, etc. 

Franchise p. 71  
Alienation p. 183  
Reparation p. 235    
Churchmen, Action p. 230 231 

discharged from Torns p. 230  
purveyance p. 23, 267  
Their complaints p. 227, 236  
Privileged from distress p. 242    
Ciricksceate amongst the Saxons p. 30 

Normans p. 139  
Vide first fruits.    
Circuits p. 192  
Citation p. 182, 242  
Clerks trial p. 185, 231, 243 

Killers of Clerks p. 185    
Comites ex plebe p. 55  
Common pleas settled p. 260  
Commutation, vide Arriculi Cleri.  
Compurgators amongst the Saxons p. 89  
Confession sacred p. 242  
Constitutions at Clarindon p. 178  
de Consimili casu p. 285  
Conveyance, vide Deeds.  
Copy hold, vide Manor.  
Coroners amongst the Saxons p. 66, 286  
Corporations p. 77, etc. 125  
Coverfew p. 163  
Counsels general, vide Synods.  
Counsels of Lords amongst the Saxons p. 54 

vide Lords.    
Counties, Courts amongst the Saxons p. 65 

Normans p. 131  
After p. 275, 276, 285    
Court Baron amongst the Saxons p. 78  
Crown pleas Mag. cart. p. 264  
Courtesy of England in the Saxons time p. 105  
Custodes pagani amongst the Saxons p. 55    

D.  

DAneguelt p. 164 

Released p. 189    
Darrain. presentment Mag. Cart. p. 262  
Deacons p. 28  
Deaneries amongst the Saxons p. 36  
Debt to the King, satisfaction p. 257  
Debt to the King, Mag. cart.  
Decenners amongst the Saxons p. 70 

Normans p. 134    
Deeds among the Saxons p. 107  
Defamation p 235, 240  
Departure beyond Sea without licence p. 180  
Dioceses amongst the Saxons p. 36  
Distress in the Normans time p. 142 

Mag. carta 258, etc.  
vide County court.    
Disseisin, vide Redisseisin & Noveldisseisin.  
Dower in the Saxon time p. 103 

Norman times p. 146, 256      

E  

Ecclesiastical cognisance and powmer p. 176, etc. 129, 204 

Vide Stat. Circumspect agatis & Articuli cleri.    
Ederbrece amongst the Saxons p. 101  
Edw. the first p, 214  
Edw. the second p. 218  
Elections p. 121, 180, 232, 243  
Elegit amongst the Saxons p. 95  
Englishire, a Saxon Law p. 100  
Error, vide Appeals.  
Escheates p 268 

Vide Forfeiture, Felony.    
Escuage, Mag. Carta p. 276, etc.  
Excommunication in the Saxons time p. 95 

Normans p. 128  
After the Normans time 181    
Excommunicato deliberando p. 241  
Excommunicato capiendo p. 242, 291  
Execution in the Saxon time p. 94  
Executors Mag. carta.  
Exorsists p. 28    

F.  

Fairs in the Norman time p. 143  
Fauxonry p. 192, 195  
Feastdays, Norman law p. 139  
Felonies and Felons punishment and forfeiture p. 151, 195 267 

Concelement p. 289  
Defamed ibid.    
Feorme or Farm amongst the Saxons p. 75  
Fightwit amongst the Saxons p. 100  
Fine, by the Normans p. 150, 280, etc.  
Folkmote, Vide County court.  
Fools and idiots amongst the Normans. p. 149 

After p. 280    
Foreign counsels p. 209, 212 219  
Fornication, vide Adultery.  
Forests amongst the Saxons p. 82  
Franchises p. 68  
Frankpledge amongst the Saxons p. 78 

Vide view.    
Freemen of the Saxons p. 55 

Normans p. 135  
After p. 188, 272    
Frithbrech amongst the Saxons p. 100  
Fugam fecit p. 85 

Fugitives p. 268      

G  

GAvellkind amongst the Saxons p. 106 

Normans p. 160    
Glebe amongst the Saxon p. 32  
Goods found, Saxon Law p. 109 

Norman p. 143  
Sale ibid.    
Grithbrech, vide Frithbrech.    

H  

HAbendum, Saxon p. 107  
Hamsockne Saxon p. 101  
Heresy punished by the Saxons p. 39 

Normans p. 138  
After p. 193    
Haubergettum, Haubertum, Halbargellum what it is p. 309  
Heretock, Saxon p. 53  
Henry the first p. 119  
Henry the second p. 167  
Henry the third p. 207, etc. 

Shifts for money p. 210  
Foreign counsels p. 212  
Yields up his interest in the militia to the Lords ibid. etc.    
Heordpeny, vide Peterpence.  
Highways privilege p. 305  
Hundred and the Court Saxon p. 68 

Norman p. 133    
Hundred Setena Saxon p. 68    

I  

IDolatry punished by the Saxons p. 97 

Normans p. 138  
Vide Blasphemy.    
Imprisonment Saxon p. 100 

Norman p. 151    
Incest punished by the Saxons p. 101  
Indictment Saxon law p. 85  
Infancy amongst the Saxons p. 88 

After p. 198    
Infangtheoff, Saxon p. 74  
Inheritance Saxons p. 102 

Normans p. 160  
After p. 196, etc.    
Inquest Saxon p. 91  
Interdict in the Saxon time p. 38 

After p. 182    
Intent punished by the Normans p. 151  
Intestate Saxon law p. 109 

Norman p. 143  
Afterward 232, etc. 264, etc.    
John p. 170  
Judgement, vide execution.  
Judges, vide Justice.  
Judicatory 189, etc.  
Jury grand & petit amongst the Saxons p. 91  
Justice and their Courts amongst the Saxons p. 84 

Chief Justice p. 191    
Judges or Justices itinerant after the Normans p. 192, 199 284    

K  

KIngs amongst the Saxons; election, continuance, covenant, maintenance, power, in Church-matters p. 46, etc. 56 

Amongst the Normans: election 113, etc.  
Covenant 116. etc.  
Power in Church matters p. p. 123, etc.  
In the times of Steven, Henry the second, Richard the first, and John: Election p. 165  
Power in Church matters p. 176, etc.  
In the times of Henry the third, Edward the first, and Edward the second. Succession p. 208, etc.  
Power in Ecclesiastical matters p. 225, etc. 233  
In Civil affairs 277, etc. 317, etc.    
Knightservice amongst the Saxons p. 76 

Marriage p. 146, 202, 255  
Acquittal p. 149  
Widows p. 256      

L  

LAnguage endeavoured to be changed by the Normans p. 161  
Lashlight amongst the Saxons p. 99  
Lecturers amongst the Saxons p. 28  
Leet amongst the Saxons p. 78  
Legierwit amongst the Saxons p. 100  
Livery and seisin amongst the Saxons p. 108  
London p. 257  
Lordsday maintained by the Saxons p. 98 

By the Normans as plea of the Crown p. 139    
Lords, their counsels amongst the Saxons p. 62, 84 

From the conquerors time till Henry the third p. 174    
Lorica, what it is p. 309  
Lucius p. 9, etc.  
Luminaries amongst the Saxons p. 31  
Lunacy, vide fools.    

M  

MAgna carta p. 172 

Renewed with the curse p. 210  
Stat. etc. p. 253  
Cap. 35. p. 244  
Cap. 37. p. 245    
Mainpernours by the Saxons p. 85, 87 

By the Normans p. 151    
Maims punished by the Saxons p. 100  
Manbota amongst the Saxons p. 99  
Manors amongst the Saxons p. 75 

Normans p. 134    
Manslaughter punished by the Saxons p. 99 

Normans p. 140  
After p. 195    
Manumission p. 137  
Marriage portion, vide Dower.  
Marriage, vide Knightservice.  
Merchants Magna carta p. 272  
Marches amongst the Saxons p. 72 

Normans p. 131    
Markets amongst the Saxons p. 80 

Normans p. 143  
Vide Townships.    
Marshal's Court p. 285  
Matrimonial causes amongst the Saxons p. 41  
Medietas linguae amongst the Saxons p. 92  
Metropolitan amongst the Saxons p. 23  
Micklemote amongst the Saxons p. 57 

The Primacy of Canterbury settled there p. 36    
Mills tithed p. 240  
Militia amongst the Saxons p. 63 

The Normans p. 152  
During the King's next ensuing p. 205  
During Henry 3. Edward 1.  
Edward 2 p. 294    
Mint amongst the Saxons. 

Normans p. 137    
Monastery admission p. 183  
Mortdancester p. 198, 261  
Mortmain p. 245  
Mortuary amongst the Saxons p. 32    

N  

News scandalous p. 292  
Nightwatches by the Normans p. 141 

After p. 304    
Nobility amongst the Saxons p. 53 

From the Normans time p. 172  
From King John's time p. 221    
Normans, their title, etc. p. 113, etc. 

Not conquest p. 155    
Novel disseisin p. 199, 261    

O  

OBlations cognisance p. 235  
Odio & Atia p. 269, etc.  
Officers power greater than kings p. 173  
Ordeale amongst the Saxons p. 89  
Ordinaries intestate p. 232  
Outfangtheoff amongst the Saxons p. 74  
Ostiaries amongst the Saxons p. 28  
Oaths p. 246, 271    

P  

PAlatine county amongst the Saxons p. 73  
Parishes amongst the Saxons p. 35  
Parliaments p. 120, 278  
Parks trespasses p. 292  
Passage p. 272  
Peace amongst the Saxons p. 100 

The Normans p. 140  
After p. 300    
Penal Laws, Saxons p. 96 

Normans p. 138  
After in the time of Henry 2. p. 193  
After p. 286    
Perjury punished by the Saxons p. 40, 101  
Peers amongst the Saxons p. 93  
Peterpences amongst the Saxons p. 32 

The Normans p. 139    
Pledges p. 150  
Plough alms, Saxons p. 32  
Pope's power p. 19, 177, 184 

Oppressions of the Clergy p. 225    
Prelacy in England not till Constantine's time 11. came from Rome by Austin p. 21, etc. 

Suddenly grown p. 44    
Praecipe Mag. carta p. 268  
Priors, vide Abbats.  
Presbyters amongst the Saxons p. 27  
Presentment amongst the Saxons p. 86  
Priority, vide Tenure.  
Prohibitions p. 228, 233  
Protector p. 209  
Provinces amongst the Saxons p. 35  
Purveyance p. 244, 265, etc.    

Q  

QUare Clausum fregit, Saxon p. 101  
Quare excommunicavit p. 227  
Quare non admisit ibid.  
Quarentine p. 256, 282  
Quo warranto p. 244    

R  

RAnsome p. 94, 260  
Rape, Norman p. 141 

After p. 195, etc. 288    
Reasonable part 257, 264 

Vide Dower.    
Redemption, vide Ransome.  
Redesseisin p. 292  
Relief, Norman p. 145 

After p. 201    
Religious houses, vide Abbeys.  
Replevy, Norman p 142 259  
Richard the first p. 169  
Romans entry p. 5 

The Papalty, with seven degrees of their Church Officers p. 29  
Seven sorts of Church maintenance p. 35    
Romescot Romesfeogh, vide Heardpenny.  
Robbery punished by Saxons p. 101 

By Normans p. 142  
After p. 193, 195, 287, 304      

S  

SAbbath day, Saxon law p. 98  
Sacrilege, Saxon law p. 41  
Sanctuary p. 139, 183, 242  
Saxons in England mingled p. 90  
Seal, vide Deeds p. 107  
Sheriffs, Saxon p. 65 

Extortion p. 275, 286    
Simony punished by the Saxons p. 41  
Sorcery, vide Witchery.  
Soulshot Saxon p 32  
Socage Saxon p. 77  
Steven his government p. 165  
Stat. 

Magna carta, vide Magna carta.  
Merton, cap. 1, 2, 6, 7 p. 156 

Cap. 1. p. 282  
Cap. 3. p. 292  
Cap. 9 p. 252  
Cap. 10. p. 275  
Cap. 11. p. 295    
Marlbridge, cap. 1, 2, 3. p. 259 

Cap. 4. ibid.  
Cap. 5. p. 280  
Cap. 8. p. 292  
Cap. 9 p. 264  
Cap. 10. p. 229, 275  
Cap. 15. p. 259  
Cap. 16. p. 254  
Cap. 17. p. 282  
Cap. 19 p. 262  
Cap. 20. p. 261  
Cap. 21. p. 259  
Cap. 22. p. 260  
Cap. 25. p. 287, 302  
Cap. 29. p. 229    
Westm. 1. cap. 1, 2, 5. p. 231, etc. 

Cap. 3. p. 289, 302  
Cap. 4. p. 281  
Cap. 6. p. 263  
Cap. 9 p. 289  
Cap. 10. p. 286  
Cap. 11. p. 270  
Cap. 12. p. 289  
Cap. 13.. p 288  
Cap. 14. p. 275  
Cap. 15. p. 290  
Cap. 16. p. 260  
Cap. 20. p. 292  
Cap. 22. p. 256  
Cap. 23. p. 286  
Cap. 32. p. 266  
Cap. 33. p. 275  
Cap. 34. p. 292  
Cap. 36. p. 285  
Cap. 51 p. 261    
Bigami p. 247, etc.  
Glocest cap. 1. p. 262 

Cap. 5. p. 255  
Cap. 6. p. 261  
Cap. 8. p. 285, 302  
Cap. 9 p. 270    
De Religiosis p. 245  
Westm. 2. cap. 13. p. 275 

Cap. 16. p. 256  
Cap. 19 p. 232  
Cap. 24. p. 285  
Cap. 26. p. 292  
Cap. 29. p. 270, 285  
Cap. 30. p. 262  
Cap. 33. p. 245  
Cap. 34. p. 288    
Winton p. 302, etc.  
Circumspect agatis p. 233, etc.  
Quia emptores p. 274  
De Judaismo p. 273  
Quo warranto p. 244  
De vasto p. 255  
De consultatione habenda p. 238  
De wardis p. 254  
Artic. super Cart. cap. 2. p. 266 

Cap 3. p. 285  
Cap. 9 p. 286  
Cap. 12. p. 260  
Cap. 13, 14. p. 276  
Cap. 15. p. 285  
Cap. 18. p. 255    
Conjunct feoffat. p. 262  
Amortizand terris p. 246  
Asportat bonis Relig. p. 244  
De militibus p. 294  
Artic. cleri p. 219, 238  
Vicecomit p. 219, 276, 286  
De priscis bonis cleri p. 219, 244  
Prerog. reg. p. 220 

Cap. 3, 13. p. 254  
Cap. 7. p. 274  
Cap. 9 p. 280  
Cap. 11. p. 281  
Cap. 14, 16. p. 268      
Subdeacons' p. 28  
Suit of Court p. 202 

Vide Manor.    
Synods, Briton p. 11 

Saxon p. 37  
Disadvantageous to Prelacy p. 45  
Norman p. 127  
Without the Laity p. 187  
Power p. 248, etc.      

T  

Tail, Saxon law p. 105  
Taxes p. 278 

Vide Free men.    
Tenors, vide Manor. 

Normans changed them not p. 161    
Tenors by several Lords, priority p. 200 

By Escheats p 273    
Term, Saxon p. 110  
Testament, Saxon p. 108 

After p. 202, etc.    
Thefts, cognisance p. 193, 195  
Tithes, original p. 30 

Cognisance p. 43  
Normans p. 139, 778, 238 240    
Torn, Saxon p. 67, 275  
Torture amongst the Saxons p. 88  
Townships and their Courts, 

Saxon p. 81  
Normans p. 134    
Treason punished by Saxons p. 98 

After p. 194    
Trover of goods p. 143  
Trotheplight p. 179    

V  

VAcancies of Churches p. 179, etc. 185  
Vacation, vide Term.  
View of piedges, Saxon p. 78 

Norman p. 134  
After p. 263, 275    
Villains, Saxon p. 56 

Normans p. 137    
Violence done to Clerks p. 235  
Use in deeds of conveyance, Saxon p. 107  
Usury p. 273    

W  

WArdship p. 148, 202, 254, 270  
Warranty, Saxon p. 107  
Wears p. 268  
Wera, wergilda, Saxon p. 99  
Weights and measures, Saxons p. 28 

Normans p. 142, 269    
Widows, vide Socage and Knightservice.  
William the first p. 113, etc.  
William Rufus p. 118  
Wife, Saxon p. 98  
Will, vide Testament.  
Witnesses, deeds, Saxon p. 108  
Witchery p. 40 

Punished by Saxons p. 97    
Wita, Saxon p. 99  
Worship, Saxon, cognisance p. 39  
Wrecks p. 281    
FINIS.