so things were done according to his mind though he did them not And thus his Excellency seemed more eminent in finding and making instruments fitting to do his work than in doing his own work Nevertheless all this was but from hand to mouth no Fundamental Law is altered all this while If the Laws were made by Parliament the King made them not If the Judges turned the Law to the King's ear the Law was still the Crown though the King wore it But Henry the Eighth was no such man he had not this skill of undermining nor desired it he was tender of the least diminution of his Honour industrious in finding out the occasion and a most resolved man to remove it out of the way though it reached as high as the Triple Crown A man underneath many passions but above fear What need he care for pretences his Father loved Riches he Power When he came to traverse his ground he found quickly where the Church-men trespassed upon him and began with them resting upon the wisdom of his Father and the infallibility of the Pope Henry the Eighth had taken to Wife Katherine his Brothers Dowager and continued in that condition Eighteen years without wrinkle of Fame till the great Success of Charles the Fifth the Queens Brother against the Pope and French scared the King into a jealousie of his greatness and the Emperour 's failing in courtesie to Cardinal Wolsey the King 's Achates stirred the Cardinals spirit to revenge for the loss of his hopes in the Popedom For the Cardinal finding the King's mind to linger after another Bedfellow by whom he might have a Son he made the French Embassadour his Instrument to mind the King of his unlawful Marriage with the Queen and to mention unto him Margaret D' Alanson a Princess of France both in Bloud and Beauty The King liked the notion of Divorce but disliked the motion concerning the French Lady himself being prepossessed with a fair Object at home the Lady Anne Bullen then attending upon the Queen And thus being moved he entred into a scrutiny concerning the condition of his Marriage wherein he had been formerly touched both by the French and Spaniards themselves upon several motions made First Between Charles the Fifth and afterwards between the Dauphine and the Lady Mary afterwards Queen Hereat the Cardinal winked all the while till the infallibility of the Chair of Rome came upon the Stage then bestirring his Wits he lodged the Case upon Appeal thither as he hoped beyond all further Appeal and so held the King there fast till himself might accomplish his own ends But the Wheel once set a running would not stay The King espies the Cardinal in his way and bears him down Then finding the fallacy of the infallible Chair he hearkens after other Doctors follows their light and being loth to hear what he expected from Rome he stopped the way to all Importation of such Merchandize as might be any ways prejudicial to the Prerogative Royal with the penalty of the loss of Land or Liberty and Fine the two latter being formerly warranted by Law. The first served as a scare for though it were but by Proclamation men might justly fear that he who was so stout against the Pope would not stick to scourge his own Subjects out of his way in the time of his heat The King thus entred the Lists both against Pope and Cardinal now under Praemuniri whereof he died meets the English Clergie thus losing their Top-gallant standing up in the Reer against him and talking at large Nevertheless the King stops not his career puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a sum of Money and perfume their Sacrifice with that sweet Incense of Supream Head of the Church of England This was done not by way of Donation for the Convocation had no such power but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope It became the common subject of discourse amongst all sorts but of wonderment to the Pope Yet for fear of worse he speaks fair for he was not in a posture to contest but all would do no good The Queen had appealed to Rome the Pope by Wolsey's advice makes delays The Parliament espying the advantage at once took all Appeals to Rome away and established all Sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergie to administer the several Acts of publick Worship notwithstanding any Inhibition or Excommunication from any Forein pretended Power The grounds upon the Preamble of the Law will appear to be Two. First That the King of England is Supream Head in rendring Justice within the Nation in all Causes therein arising which is more than the Recognizance of the Clergie two years before this Act did hold forth Yet this acknowledgement is not absolute but in opposition to Forein pretensions Secondly That the Clergie in England having power may in matters Spiritual determine all doubts without Forein help and administer such Duties as to their place do belong Not hereby determining that the Church-men ever had such power by Law nor that they ought originally to have such power They never had it for no sooner were they dis-joyned from the Laity in these affairs but immediately they were under the Pope and received their power from him And de Jure they cannot challenge such power but by a positive Law such as this Law of Henry the Eighth which also giveth but a restrictive and limited power viz. In matters Testamentary of Divorce Matrimony Tythes Oblations and Obventions So as if they will challenge such power they must thank the Parliament for it and use the same accordingly as persons deputed thereunto and not in their own right or right of their places In all this the King's Supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden than by declaration of what was making way thereby First Into the Opinions of men before they were enjoyned to determine their Actions but within Two years ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely Supream Head on Earth of the Church of England and have power to visit correct repress redress reform restrain order and amend all such errours heresies abuses offences contempts and enormities as by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be reformed Which in the Preamble is said to be made to confirm what the Clergie in their Convocation formerly had recognized The corpse of this Act is to secure the King's Title the King's Power and the King's Profit As touching the King's Title it is said that in right it did formerly belong to him which is to be granted by all so far as the power is rightly understood But as touching the King's Profit it cannot
be said that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Pope's extortion and therefore the true and real profits are by particular Acts of Parliaments ensuing in special words devolved upon him The nature of this power is laid down in this Statute under a threefold expression First It is a visitatory or a reforming power which is executed by enquiry of Offences against Laws established and by executing such Laws Secondly It is an ordinary Jurisdiction for it is such as by any Spiritual Authority may be acted against Irregularities And thus the Title of Supream Ordinary is confirmed Thirdly It is such a power as must be regulated by Law and in such manner as by any Spiritual Authority may lawfully be reformed It is not therefore any absolute Arbitrary Power for that belongs onely to the Supream Head in Heaven Nor is it any Legislative Power for so the Law should be the birth of this power and his power could not then be regulated by the Law nor could every Ordinary execute such a power nor did Henry the Eighth ever make claim to any such power though he loved to be much trusted Lastly This Power was such a Power as was gained formerly from the King by Forein Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law. For the King hath no power thereby to confer Church-livings by Provisorship or to carry the Keys and turn the infallible Chair into an infallible Throne In brief this power was such as the King hath in the Commonwealth Neither Legislative nor Absolute in the executive but in order to the Unity and Peace of the Kingdom This was the Right of the Crown which was ever claimed but not enjoyed further than the English Scepter was able to match the Romish Keys And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the people binding them to acknowledge the King under God supream head on earth of the Church of England Ireland and the Kings Dominions in opposition to all forein Jurisdiction And lastly by a Law which bound all the people to maintain the Kings Title of Defender of the Faith and of the Church of England and Ireland in Earth the supream Head under the peril of Treason in every one that shall attempt to deprive the Crown of that Title We must descend to particulars for by this it will appear that these general Laws concerning the Kings refined Title contained little more than matters of Notion otherwise than a general bar to the Popes future interests And therefore the Wisdom of the State as if nothing had been already done did by degrees parcel out by several Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And first concerning the Legislative Power in Church-Government It cannot be denied but the Pope De facto had the power of a Negative vote in all Councils and unto that had also a binding power in making Laws Decrees and Decretals out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as Head of the Church but with such limitation and qualifications that it is evident it never was in the Crown or rightly belonging thereto First Nigh three years after this Recognition by the Clergy in their Convocation it is urged upon them and they pass their promise In verbo Sacerdotii And lastly It is confirmed by Act of Parliament That they shall never make publish or execute any new Canon or Constitution Provincial or other unless the Kings Assent and License be first had thereto and the offences against this Law made punishable by Fine and Imprisonment So as the Clergy are now holden under a double Bond one the honour of their Priesthood which binds their Wills and Consciences the other the Act of Parliament which binds their powers so as they now neither will nor can start Nevertheless there is nothing in this Law nor in the future practice of this King that doth either give or assert any power to the King and Convocation to bind or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more than any of the Kings Predecessors ever had in their possession A second Prerogative was a definite power in point of Doctrine and Worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinations according to Gods Word and Christs Gospel by the Kings Advice and Confirmation by Letters-patent under the Great Seal at any time hereafter made and published by the Archbishops Bishops and Doctors now appointed by the King or the whole Clergie of England in matters of the Christian Faith and lawful Rites and Ceremonies of the Same shall be by the People fully believed and obeyed under penalties therein comprised Provided that nothing be done contrary to the Laws and Statutes of this Realm A Law of a new birth and not an old Law newly revived or restored This the present occasion and the natural constitution of the Law do fully manifest The occasion was the present perplexity of the people for instead of the Statute Ex officio which was now taken away the Six Articles commonly called the Six-Stringed Whip were gotten into power by a more legal and effectual Original The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples Liberty and further security against Foreign pretensions the other which was more difficult for the liberties of the Consciences of multitudes of men of several Opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground And finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the work would be long require much debate and retard all other affairs of the Commonwealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that work which was most properly theirs and lay before them And as touching this matter concerning Doctrine they agreed in that wherein they could agree viz. To refer the matter to the King and persons of skill in that mystery of Religion to settle the same for the present till the Parliament had better leisure the people more light and the minds of the people more perswaded of the way Thus the Estates and Consciences of
declared according to the entry in that Case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councils which weakned the esteem of Conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle And by this means the necessity of calling together the whole Body-Representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its Juridical power to the three Courts at Westminster viz. the Kings-bench Common-pleas and Exchequer saving still the supreme Judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free voting without impeachment CHAP. LIX Of the state of the Clergie and their power in this Kingdom from the Normans time IF the Prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much less in these times succeeding wherein the Clergie took up the Bùcklers and beat both King and Commons to a Retreat themselves in the interim remaining sole Triumphers in the Field In their first Adventure they paced the Stage no man appearing to oppose Steven then was King by their leave and their Bond-servant and they might have any thing sobeit they would suffer him to enjoy his Crown His Brother the Bishop was the Pope's servant the Church-mens patron and the King's surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better Title than Election Conscience in those times was well enough satisfied in the breach of Covenant on their part when on the King's part it was first broken All this the King saw full well and therefore what can he deny to such Benefactors Vacancies of Churches he readily parts with and his right of investiture of the Mitred Clergie he dispensed so as he open'd the way to his Successours of an utter dereliction of that Priviledge He sees his Brother the Legate deflower the Crown of England by maintaining Appeals from the Courts in England unto the Court of Rome and he says nothing he is contented with the stump of the Crown and with Saul if he be but honoured above or before all others of the people it is enough But the Clergie like the barren Womb hath not yet enough The King hath allowed them Castles and too late he sees that instead of being Defences against the Imperial power of the Empress they are now made Bulwarks against the lawful power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himself is now summoned to answer this before a Legatine Council wherein his Brother is President That was a bold adventure in them but it was extreme rashness in him to appear and plead the Cause of the Crown of England before a Conventicle of his own Subjects And thus to secure Rome of Supremacy in Appeals he suffers a recovery thereof against his own person in a Court of Record and so loses himself to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner The Empress perceiving the power of the Clergie betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospel were now under their decree publish That the Election of the King belongeth unto them and by them the Empress is elected Queen in open Synod Steven's Brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange President in the English Government for Posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the King's return unto his Throne again wherein he continued a friend to the Clergie during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in Title and Power and one that came to the Crown without pre-engagement by Promise or Covenant saving that which was proper for a King. A man he was that knew full well the Interests in the Government the growing power of the Clergie and the advantages lost from the Crown by his Predecessor And to regain these he smooths his way towards these braving men speaks fair profers fair he would act to increase the bounds of the Church He would have the Pope's leave to do him a kindness and sobeit he might gain an interest in Ireland he would take it from the Pope who pretended as Heir of Jesus Christ to have the Islands and utmost parts of the Earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Pope's kindness for the confirmation of the Liberties and Customs of his Crown and Kingdom and no sooner desired than obtained This was a second Example of a King of England but the first of an English King that sought to Rome for Right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple Crown Nor was Henry the second less benign to the Church-men till he found by his dear-bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himself as in that shameful success of the death of Becket may appear wherein he yielded the day up to the Clergie who formerly scorned to stoop to the greatest Potentate on Earth The State of Kings is to be pitied who must maintain a politick affection above and sometimes against Nature it self if they will escape the note of Tyranny in their Undertakings and of a feeble Spirit in their Sufferings For the King having made Becket Chancellor of England and then Archbishop of Canterbury he became so great that his Feathers brushed against the King's Crown who begins to rouse up himself to maintain his Honour and Prerogative Royal. The Bishops side with Becket the King intending the Person and not the Calling singles out the Archbishop and hunts him to soil at Rome yet before he went the King puts the points of his Quarrel in Writing and made both Archbishop and Bishops signe them as the Rights of his Crown and as the Consuetudines Avitae But Becket repenting went to Rome and obtained the Pope's pardon and blessing the rest of the Bishops yielding the Cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then
constant supply for the Church-men out of their Estates as well real as personal especially in the particulars ensuing The most ancient of all the rest was the first-fruits which was by way of eminency called Cyrick-sceate or in more plain English Church free which was always payable upon St. Martins day unto the Bishop out of that house where the party did inhabit upon the day or Feast of the Nativity 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 After the first-fruits cometh to consideration the Revenue of Tythes the which I find no publick 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 imployed one to the poor another for the maintenance of the Church and a Third part for the maintenance of the Presbyter But in future times many Acts of State succeeded concerning this amongst which that grant of Athelwolfe must be a little paused upon Some Writers say that he gave the tenth Mansion and the tenth of all his goods but Malmsbury saith the tenth of the hides of Land but in the Donation it self as it is by him recited it is the Tenth Mansion But Matth. Westm. understands that he gave the Tenth part of his Kingdom but in the Donation by him published it is decimam partem terrae meae In my opinion all this being by Tradition little can be grounded thereupon The form of the Donation it self is uncertain and various the inference or relation more uncertain and unadvised for if the King had granted that which was not his own it could neither be accounted pious or rational Nor do we find in the Donation that the King in precise words gave the Land or the Tenth part of the Land of his Kingdom but the Tenth of his Land in the Kingdom And the exemplification published by Matth. Westm. countenanceth the same albeit the Historian observed it not But suppose that the Kingdom joyned with the King in the concession and that it was the course to pass it onely in the Kings name yet could not the Tenth Hide Tenth Mansion or Tenth part of the Kingdom be granted without confusion in the possessions of the people For either some particular persons must part with all their possessions or else out of every mans possession must have issued a proportionable supply or lastly a Tenth part of every mans possession or House and Land must be set forth from the rest or some must lose all and become beggars to save others all which are to me equally improbable Nevertheless I do not take the thing to be wholly fabulous but may rather suppose that either a Tenth was given out of the Kings own Demesnes which is most probable or else the Tenth of the profits of the Lands throughout the Kingdom and that it was by publick Act of State and that clause forgotten by Historians And thus might a good president be led to Alfred Athelstan and other Kings who setled Tythes under payment of penalties and appointed the times of payment viz. The small Ttihes at Whitsontide and the great Tithes at Alhollantide Another Tribute was that of Luminaries which by Alfred and Gunthrum was first setled by Law although it had been before claimed by Canon It was payable thrice a year viz. Hollantide Candlemas and Easter at each time half a penny upon every Hide of Land and this was under a penalty also Another Income arose from the Plough and under the name of Plough-Alms At the first it was granted by Edward the Elder generally and the value was a penny upon every plough and in after-times it was ordained to be paid Fifteen days after Easter 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 asking so long as the body was above ground and this it 's probable turned into that fee which was afterward called a Mortuary The incumbent also of every Church had Glebe laid to the Church besides oblations and other casual profits 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 setled Lastly the zeal of the charity of England was not so cold as to contain it self within it's 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 Heord-penny for it was a penny upon every hearth or chimney payable at the Feast of St. Peter ad vincula and therefore also called Peter-pence it was for the Popes use and was setled under great penalties upon the defaulters It arose by degrees and parcels For first Ina the Saxon King granted a penny out of every house in his Kingdom After him Offa granted it out of every dwelling house that had ground thereto occupied to the yearly value of Thirty pence excepting the Lands which he had purposed for the Monastery at St. Albans This Offa had a much larger Dominion than Ina and was King over Three and twenty Shires After whom Aethelwolf passed a new grant thereof out of his whole Kingdom which was well-nigh all that part which was called Saxony with this proviso nevertheless that where a man had divers dwelling houses he was to pay onely for that house wherein he dwelt at the time of payment Afterward Edward the Confessor confirmed that Donation out of such Tenements as had Thirty pence vivae pecuniae If then it be granted that the Saxon Subjects had any property in their Lands or Tenements as no man ever questioned then could not this charge be imposed without the publick consent of the people and then the assertions of Polydore and the Monks who tell us that Ina and Offa had made the whole Kingdom tributary to Rome must needs be a mistake both in the person and the nature of the gift seeing there is a much more difference between an Alms and a Tribute than between the King and the People Now that it was an Alms and not a Tribute may apear for that the original was a suddain pang of Zeal conceived and born in one breath while the King was at Rome and therefore not imposed as a Tribute Secondly it was ex regali munificentia and therefore free Thirdly it was expresly
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 and from amongst the men of chiefest rank in the County and sworn in their presence but the Kings Writ led the work CHAP. XXIV Of the County-Court and the Sheriffs Torne THE Government of the County in times of peace consisted much in the administration of Justice which was done in the publick meetings of the Freeholders and their meetings were either in one place or in several parts of the County in each of which the Sheriff had the managing of the acts done there The meeting of the Free-men in one place was called the Folkmote by the Saxons saving the judgment of the honourable Reporter Coke Instit. 2. p. 69. and of latter times the County-Court the work wherein was partly for consultation and direction concerning the ordering of the County for the safety and peace thereof such as were redress of Grievances election of Officers prevention of dangers c. and partly it was judicial in hearing and determining the common Pleas of the County the Church-affairs and some trespasses done therein but not matters criminal for the Bishop was Judge therein together with the Sheriff and by the Canon he was not to intermeddle in matters of Blood yet neither was the Bishops nor Sheriffs work in that Court other than directory or declaratory for the Free-men were Judges of the act and the other did but edocere jura populo yet in special cases upon petition a Commission issued forth from the King to certain Judges of Oier to joyn with the others in the hearing and determining of such particular cases But in case of injustice or errour the party grieved had liberty of appeal to the Kings Justice Nor did the Common Pleas originally commence in the County-Court unless the parties dwelt in several Liberties or Hundreds in the same County and in case any mistake were in the commencing of Suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preheminence In those ancient times this County-Court was to be holden but twice a year by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings special Writ or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the Free-men of the County assembled to learn the Law to administer Justice to provide remedy for publick inconvenience and to do their fealty to the King before the Bishop and Sheriff upon Oath and in the work of administring Justice causes concerning the Church must have the precedency so as yet the Canon-Law had not gotten footing in England The other Court wherein the Sheriff had the direction was in the meeting of the Free-men in several parts of the County and this was anciently and now is called the Sheriffs Torne which simply considered is but a Hundred-Court or the Sheriffs Torne to keep the Hundred-Court It was ordered to be kept twice every year viz. at the Lady-day and Michaelmas or soon after Unto this Court all the Free-holders 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 In this Court all the Suits in the Hundred-Court depending had their determination and others had their commencement and proceedings as well the Pleas of the Crown as others Some have conceived it to be a County-Court or superiour thereto but there being no ground thereof I conceive it to be no other than a Visitation of the County by parcels or in circuit CHAP. XXV Of the Division of the County into Hundreds and the Officers and Court thereto belonging COunties were too great to meet upon every occasion and every occasion too mean to put the whole County to that charge and trouble and this induced sub-divisions the first whereof is that of the Hundred now and also anciently so called but as ancient if not more is the name Pagus for the Historian tells us that the Germans in the executing of their Laws a hundred of the Free-men joyned with the chief Lord per pagos vicosque which first were called Centenarii or Hundreders from their number but used for a title of Honour like the Triarii And as a second hereunto I shall add that testimony of the Council at Berkhamsted which speaking the reduction of Suits from the Kings Court ad pagi vel loci praepositum in other places it is rendred to the Governours of the Hundred or Burrough And at this day in Germany their Country is divided into Circuits called Centen or Canton and Centengriecht and the Hundreders they call Centgraven or Hundred-chiefes whether for Government in time of peace or for command in time of War the latter 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 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 because of the multitude and reduced to the Lord or his Bailiff and twelve of the Hundred and these twelve were to be sworn neither to condemn the Innocent nor acquit the Nocent This was the Hundred Court which by the Law was to be holden once every Month and it was a mixt Court of Common-pleas and Crown-pleas for the Saxon Laws order that in it there should be done justice to Thieves 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 for the greater matters were by Commission or the Kings Writ removed as I formerly observed all Free-holders were bound to present themselves hereat And no sooner did the Defendant appear but he answered the matter charged against him and judgment 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 Archbishop of York prefers
and being trained up even from the Cradle in the English garb moralized by Learning and now admitted into the Throne found it the wisest course to apply himself to the rule of an English King viz. To win and maintain the good opinion of the people by consorting together with them under one Law and pledging himself thereto by taking unto Wife one of the English Blood-royal by this means he refeised and reassumed the English in partnership with the Norman in their ancient right of Government and reconciled the minds of the people under a lively hope of enjoying a setled Government Nor were they greatly deceived herein for his course was less planetary than that of either of his predecessors and yet we find little said of his parley with his people in a Parliamentary way although more of his Laws than of any of his predecessors The reason will rest in this that the Writers of those times touch more upon matters of ordinary than political observation and regarded rather the thing than the place or manner how The Laws therefore although they are not entituled as made in Parliament yet in the continuation of the History of Bede it is noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae which may give sufficient cause to suppose that he declined not the ancient way no more than he did the ancient Law. CHAP. XLVII Of the Franchise of the Church in the Normans time THE Canon-Law that ever since Austin's coming like Thunder rumbled in the Clouds now breaks forth with confusion to all opposers It had formerly made many fair proffers of service to this Island but it was disaccepted as too stately to serve yet by often courtesies received it was allowed as a Friend afar off For the vast body of the Roman Empire like a body wasting with age died upward and left the Britains to their own Laws before the second Beast was grown which being young was nourished under the Imperial Law of the first Beast till it grew as strong as its Dam and began to prey for it self The Empire perceiving its grey hairs and the youthful courage of this Upstart was glad to enter mutual League with it That to maintain the Ecclesiastical Monarchy and This again to support the Imperial and so became the Canon and Imperial Law to be united and the Professours to be utriusque juris But this parity continued not long the young Beast looked like a Lamb but spake like a Lion and contrarily the Eagle had cast its Feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon-Law above the Imperial yet allowing it to serve the turn And so the Professours of both Laws became Students in the Civil but Practisers of the Canon This Composition thus made beyond the Seas the great work was how to transport it over into this Isle for the Emperour could entitle the Pope to no power here because none he had Austin the Monk undertakes the work he offers it to the Britains under the goodly Title of Universal Bishop but they kept themselves out of Canon-shot The Saxons allowed the Title but liked not the power the Monk observed the stop and left time to work out that which present cunning could not being content for the present that a League of Cohabitation should be made between the two Swords though the spiritual were for the present underling not despairing that it would work out its own way over the Saxon Law as it had done over the Imperial Nor did his conceit altogether fail for the Saxons by little allowed much and the Danes more although the main was preserved until the Normans came upon the Stage who made their way by the Pope's lieve and gave him a colour of somewhat more than ever any of their Saxon predecessors had done and to gain the more quiet possession of the Crown to themselves allowed the Pope the honour of their Council learned to draw the Conveyance which as some think was made advantageously for the Pope himself in point of tenure but more probably in the Covenants For the Conquerour was scarce setled in his seat but the Canon-Law began to speak in the voice of a Royal Law First complaining of misgovernment as if the Church were extremely wronged by having the same way and Law of Tryal with the Commons of England and then propounds four several Expedients enough to have undone the whole Commonwealth in the very entrance had not the superstition of those times blinded both Parliament and People and rendred them willing to that which their successours in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon Law Church-matters had the preheminence both in the Hundred and in the County and it was the Bishop's duty to joyn with the Sheriff in those Courts to direct and see to the administration of Justice and yet the Canon had been above three hundred years foregoing in the Negative No Case concerning the Regiment of Souls shall be brought before the Secular Judge The Regiment of Souls was a common place sufficient to contain any thing that was in order thereunto and so every one that hath a Soul must be no more responsible unto the temporal Judge for any matter concerning it but unto the Ecclesiastical power And this not onely in case of scandal as against the moral Law or rule of Faith but for disobedience done to the Canons made afar off concerning any gesture or garb that may come within the savour of an Ecclesiastical conceit That all Delinquents against the Bishops Laws shall answer the Fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute-Law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the tryal of such matters shall be according to the Law of the Canon and not according to that of the Hundred That is not by Jury but by Witnesses in a clandestine way if the Bishop please or without any Accuser or by more scrutiny or any other way that may reserve the Lay-man to the breast of a prepossessed spirit of the spiritual Judge And thus the poor Country-man is exposed to the censure of an unknown Law in an unknown Tongue by an unknown way wherein they had no footing but by an implicit Faith. And herein the providence of God I imagine was more manifest than the wisdom of Man which was too weak to foresee events at so great a distance for questionless it was a point of excellent wisdom for the people now under a King of a rugged nature that would not stick to catch whatsoever he could get to deposit part of their Liberties into
Issue or Demurrer and then to the Common-Law where upon Trial if the Defendant make default the Plaintiff shall have Judgement and Execution And if the Heir be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibit Spiritual Courts and Courts of Common-Law yea to over-rule or reverse Judgements and yet the Common-Law held it's ground when it was concerned for neither were all suits there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Council of the King which were also learned Judges of the Law. For the Report informeth that Edward the Second had granted a Rent in Tail to the Earl of Kent who dying his Son under age and Ward to the King Edward the Third seised amongst other Lands the Rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch-bishop and others of the Council calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the Common-law but it would not be allowed because it was to repeal the King's Charter And whereas it was objected that the reference was to the Archbishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the argument of the case it appears clearly that the King's Council there were learned in the Law. And the same is yet more evident by the Title of Bills in those days exhibited in the Chancery which was directed to the Chancellor and the King's Council and the Rule given Per tout les Justices Which I rather note for the shortness of the form of Bills in those days far different from these times wherein the substance of the complaint however small in it self is oftentimes blown out into so great a bubble that it breaks to nothing And the Statutes formerly mentioned do assert the same thing as touching the King's Council For though they speak of the Council or Chancery in the English Tongue yet in the original the words are Conceil en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same In the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon For remedy whereof it was ordained That upon suggestions so made the Complainant was to find Sureties to pursue the Suggestions and that the Process of Law should issue forth against the party without imprisoning him and that if the Suggestions were not proved true the Complainant should incur the like penalty that the Defendant should have done in case he had been found Guilty But afterwards this later Clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant shall be imprisoned until he shall satisfie the Defendant of his Damages and furthermore shall make Fine and Ransom to the King. But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding Damages in such cases into the Chancellour to do according to his discretion And thus the Chancery obtained power to award Damages which they never had formely and the Chancellour a Precedency both in the Chancery and of the Council in the Court of Star-chamber and in many cases in the Exchequer By the first he had a power in matters of Meum and Tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch-bishop of Canterbury Cardinal and Legate à Latere or Arch-bishop Lord Treasurer and Legate à Latere as these days had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted Worth and Uprightness they make the Scepter stoop by stirring up envy in the Nobility and indignation from the people For seldom is it seen that Advancements are fed from the Crown though they be bred from thence but either maintained by new supplies from the peoples Purses or the ruine or decay of some Officers more ancient than themselves or both And such was the condition of the Chancellour he sucked fat from beneath and Bloud and Spirits from the Grand Chief Justiciar of England and so reduced that Honourable Potentate unto the degree of Chief Justice of the King's Bench leaving scarcely unto him the Name or Title of Lord. One thing more remaineth touching the election or nomination of this Great man. At the first he was no better than a Register or the King's Remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuit of the Writings in his custody and questionless Eo usque it is suitable to all the reason in the World that he should be of the King 's sole Nomination and Election But when it befals that instead of advising the King his word is taken to be the Rule and a Judicatory power put upon that and unto this is superadded that honourable trust of keeping and governing the Great Seal of the Kingdom with the continual growing power occasionally conferred upon him by the Parliament He is now become no more the King's Remembrancer but the Lord Chancellor of England and Supream Officer of State. And it seems but reasonable that he should hold his place by publick Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to work for another must give the other that Honour of Electing him thereto nor was this laid aside nor forgotten by these times but a claim was put in for the Election or allowance of this principal Officer amongst others the Parliament obtaining a Judgement in the case by the King's Confession and so the thing is left to the judgement of future ages Viz. Whether a King that can do no man wrong can dissemble the Royal Assent in Parliament or declare himself legally in that manner by Proclamation CHAP. V. Of Admirals Courts THis is a third Court that maintained the King's Judicatory power in a different way from that which is commonly called the Common-Law and by many is therefore supposed to advance the King's Prerogative but upon mistaken grounds It is very true that the
imprison the person of a Clergy-man than to attach his possessions And therefore they held That if the Ordinary remove not the Incumbent when the King 's Writ commands him so to do his Temporalties should be seized And if the Ordinary should certifie one to be a Clerk which is none the like course is to be taken They shall depute the next and most lawful Friends of the Intestate to administer his Goods The Statute at Westminster the second having given formerly a kind of allowance that the Ordinary should be Administrator to the Intestate so far as to answer the Intestate's Debts lent him thereby an opportunity to possess himself of the whole to all intents and purposes Which being observed by the Parliament by this Law they made way for Administration to fall through the hands of the Ordinary into the Lap of Administrators made by the Authority of the Parliament but of the Ordinaries nomination according to the Authority hereby to him given These Administrators thus made had a greater power than ever the Ordinary had or could give For though the Ordinary by the Statute at Westminster was bound to pay the Debts of the Testator yet could he never bring Action as the Administrator to all intents by this Law is enabled to do And though it be true that the Administrator is by this Law ordered to account to the Ordinary yet doth not that entitle the Ordinary to any interest in the personal Estate but only gives him a bare Authority to take the account without any compulsory power by Ecclesiastical censures to enforce him thereto Secondly it is such an account as is no Evidence in any Court of Record And lastly if upon the foot of the account any arrere remained or surplusage of Estate the Ordinary could neither recover nor order the same because by the Law anciently the next friends had the sole interest therein and being by this Statute made Administrators the whole power of ordering the Estate is vested in them To conclude this Statute was made in favour and for the ease of the Ordinary if they would please so to take it for they could get no benefit by executing the Administration in their own persons if they intended to Administer according to the Law. The persons of the Clergy are priviledged from Arrests during the Holy Actions of the Officiating This was plotted since Anselm's time he and his Successors endeavoured by Constitution and Canon continually to mind the Civil Magistrate thereof but could never nurse it up to the degree of a Law till now they gained the advantages of the times growing into a more tender apprehension of Devotion than formerly The penalty of transgressing this Law is left in general and therefore did the less scare but within three years after it was confirmed with a certain penalty of Fine and Imprisonment as to the King's suit and damages to the party offended and the Priviledge was enlarged for and during their continuance in the Consecrated ground in order to such services and not upon Fraud or Collusion to avoid Arrests But by neither of these Laws was the Arrest although contrary to them made void as touching the Process The Goods of the Clergy are discharged from Purveyance and their Houses from Quarter The latter of these was an Encroachment upon the greater Clergy-men For under the Title of Hospitality which the Prelates were obliged to by their great Possessions and Revenues conferred upon them to that end Kings used to quarter Messengers to and from Scotland the King's Horses Dogs and Hawks c. But the point of Purveyance was an ancient Prerogative belonging to Kings and by no Custom were the goods of any man discharged therefrom till it was by Act of grace first confirmed by Edward the First and afterwards by grant of Edward the Second yet by reason of the rudeness of the times did not those Acts prevail to that settlement that was promised till now Edward the Third renewed the Law. Nevertheless could not this Law of Edward the Third perfect that work because it was but a bare command till Richard the Second made a remedial Law giving thereby the Clergy that were wronged a right of Action of Trespass against the Purveyors and to recover treble damages whereas formerly they were liable only to a Fine to the King which many times was as soon pardoned as asked These condescensions might have wedded the English Clergy to the English Crown but that it was coy and expected further gratuities Besides they beheld their old Step-dame Rome now in its full Splendor and Power and deeply interested in the sway of affairs in this Kingdom and above all the rest the nigh affinity between the Prelate and the Pope was such that they sucked one Milk breathed one Air and like the Philosophers Twins lived in each other The latter of these was not discerned by those dim-sighted times and therefore they could do nothing towards the dissolution of that knot but left it to future times who found no other way than to cut it asunder But Edward the Third and his Successor espyed the first felt the inconvenience thereof and applyed themselves to such remedy as they found most ready at hand All things that are subject to time are also subject to change which comes commonly slower upon Governments that are less Ecclesiastical for Churches continue longer in a growing condition than in their complete estate like a Christian that seldom endures long after his full ripeness Thus in England it is hitherto above a thousand years since the Gospel came to the Saxons and well-nigh a thousand years since the Pope set his foot amongst us ever approaching nigher the Throne and ascending thereunto but finding it full of a King that would not remove he sits down in his Lap a heavy burthen questionless he was considering his claim of Jurisdiction his provisions pensions exemptions impositions and such like oppressions and therefore it is no wonder if the King feeling the incumbrance gives a lift at the Popes power by stoping the current of Money from England Rome-wards To this end the Statute made at Carlisle is revived whereby the Clergy are inhibited from conveying Treasure beyond the Seas but the Pope knew how to ride and will not so easily forgo his saddle The Roman Eagle had made many a fair flight in England and had not yet fully gorged himself he grants ten thousand Marks yearly out of Taxes laid upon the Church-livings in England unto two Cardinals neither of which did nor by the Canon could live in England the Treasurership of York also to another Cardinal after that the King had conferred the same elsewhere He proceeds also further to invade the undoubted rights of the Crown by making an Election of the B. of Norwich and causing him to be invested Rege renitente The King spent eight years in the recovery of his right and was deluded in the
especially such as the King was most devoted unto to put more confidence in the Pope's Amen than in all the prayers of his Commons with his own Soit fait to boot The sum then will be that the Prize was now well begun concerning the Pope's power in England Edward the Third made a fair blow and drew bloud Richard the Second seconded him but both retired The former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergie For though the times were not so clear as to espy the root of a Pope in Prelacy yet experience had taught them that they were so nigh engaged that they would not part And therefore first they let these men know that Prelacy was no essential Member to the Government of the Kingdom but as there was a Government established before that rank was known so there may be the like when it is gone For Edward the Third being troubled with a quarrel between the two Archbishops of Canterbury and York concerning Superiority in bearing the Cross and the important affairs of Scotland so urging summoned a Parliament at York which was fain to be delayed and adjourned for want of appearance and more effectual Summons issued forth But at the day of adjournment none of the Clergy of the Province of Canterbury would be there and upon this occasion the Parliament was not onely interrupted in their proceedings but an ill Precedent was made for men to be bold with the King's Summons in such Cases as liked not them and thereupon a Statute was made to enforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Nevertheless when the matters concerning provisors began to come upon the Stage which was within two years after that Law was made the Clergy found that matter too warm for them and either did not obey the Summons or come to the Parliament or if they came kept aloof or if not so would not Vote or if that yet order their Tongues so as nothing was certainly to be gathered but their doubtful or rather double mind These Prelates thus discovered the Parliament depended no more upon them further than they saw meet At six or seven Parliaments determined matters without their Advice and such matters as crossed the principles of these men and therefore in a rational way might require their Sence above all the rest had they not been prepossessed with prejudice and been parties in the matter Nor did Edward the Third ever after hold their presence at so high Repute at such Meetings and therefore summoned them or so many of them as he thought meet for the occasion sometimes more sometimes fewer and at a Parliament in his forty and seventh year he summoned only four Bishops and five Abbots And thus the matter in fact passed in these times albeit the Clergie still made their claim of Vote and desired the same to be entred upon Record And thus the Parliament of England tells all the world that they hold themselves compleat without the Clergie and to all intents and purposes sufficient to conclude matters concerning the Church without their Concurrence Thus began the Mewing time of Prelacy and the principal Feather of their wings to fall away having now flourished in England nigh eight hundred years And had future Ages pursued the flight as it was begun these Lordings might have beaten the air without making any speedy way or great work saving the noise A third step yet was made further in order to the reducing of the power of the Popedom in England but which stumbled most immediately upon the greatness of the Prelates For it was the condition of the Spiritual powers besides their height of Calling to be set in high places so as their Title was from Heaven but their Possessions were from Men whereby they gained Lordship Authority and power by way of Appendix to their Spiritual Dignities This addition however it might please them yet for a long time before now it had been occasion of such murmure and grudge in the Commons against the Clergie as though it advanced the Clergie for the present yet it treasured up a back-reckoning for these men and made them liable to the displeasure of the Laity by seizure of their great places whenas otherwise their Ecclesiastical Dignities had been beyond their reach And of this these times begin now to speak louder than ever not only by complaints made in Parliament by the people but also by the Lords and Commons in Parliament to the King That the Kingdom had been now long and too long governed by the Clergie to the disherison of the Crown and therefore prayed that the principal Offices of the Kingdom might henceforth be executed by the Laity And thus the stir arose between the Lords Temporal and Spiritual each prevailing or losing ground as they had occasion to lay the way open for them The Duke of Lancaster being still upon the upper ground that as little regarded the Popes Curse as the Clergie loved him But the worst or rather the best is yet behind outward power and Honourable places are but under-setters or props to this Gourd of Prelacy that might prove no less prejudicial by creeping upon the ground than by perking upward For so long as Errour abideth in the Commons Truth can have little security amongst Princes although it cannot be denyed but it is a good sign of a clear morning when the Sun-rising gloryeth upon the top of the Mountains God gives Commission therefore to a Worm to smite this Gourd in the Root and so at once both Prelate and Pope do wither by undermining This was Wickliff that had the double honour of Learning in Humane and Divine Mysteries The latter of which had for many years passed obscurely as it were in a twilight amongst the meaner sort who had no Endowments to hold it forth amongst the throng of Learned or great men of the world And though the news thereof did sound much of Holiness and Devotion Themes unmeet to be propounded to an Age scarce civilized yet because divers of them were more immediately reflecting upon the policy of the Church wherein all the greater sort of the Church-men were much concerned but the Pope above all the rest the access of all the matter was made thereby more easie to the consideration of the great Lords and Princes in the Kingdom who out of principles of State were more deeply engaged against the Pope than others of their Rank formerly had been Duke John of Gant led the way in this Act and had a party amongst the Nobility that had never read the Canon-Law These held forth Wickliff and his Learning to the world and Edward the Third himself favoured it well enough but in his old Age desiting his
embasing of Money against forein Money not made currant against counterfeit and false Money For according to the goodness of the Money so will the Trade be more or less For the Merchant will rather lose in the price of his Commodity in Money than in exchange for other Commodity because the value thereof is less certain and the Transportation more chargeable Secondly as touching the plenty of Money that is as necessary to the advance of the Trade as of the goodness of it For according to the plenty thereof will be the plenty of the Manufactures because Handicrafts-men having no Commodities but their labour cannot work for exchange nor can exchange supply Rents and maintenance to the greater sort of people To this end therefore it is provided against melting of Money and Exportation of Silver and Gold. And yet to encourage or not discourage Importation of Silver and Gold liberty was given to every man to Export so much as they did Import provided that what they carry away must be of the new stamp or Minted in this Nation By this means Bullion came in with probability that much thereof would remain in the Nation in lieu of Commodities exported or if not the greater part yet at least the Mint gained and that was some benefit to the Nation Thirdly for the fuller currance of the Money the Issue was established in several parts of this Kingdom according to the ancient custom and this was advantageous both to the Mint and to the Stock of Money in the Kingdom This establishment was with this difference that though the Mint was setled by the Parliament yet the Exchange was left to the Directory of the King and his Council Because the Exchange is an uncertain thing subject to sudden alteration in other Nations and it is necessary that in this Country it be as suddenly ballanced with the Exâ—change in other Countries or in a short time the Nation may receive extream damage In regard whereof and many other sudden exigencies in Trade it seemeth to me convenient that a particular Council were established for continual influence into all parts of these Dominions to take into consideration the quantity of the Staple-Commodities necessary to be retained as a Stock at home for the use of the people and the Manufactures and accordingly to ballance the trade of Exportation and Importation by opening and enlarging or shutting and straitning the Stream as occasion doth require And lastly to watch the course of the Exchange in forein parts and to parallel the course thereof in this Land thereto For otherwise the publick must necessarily suffer so long as private men seek their own particular interests onely in their course of Trade CHAP. VIII Of Legiance and Treason with some Considerations upon Calvin's Case AS Times change Manners so do Manners change Laws For it is the wisdom of a State when it cannot over-rule Occasion to pursue and turn it to the best issue it can Multitude of Laws therefore are not so much a sore to the people as a symptome of a sore people Yet many times Laws are said to be many whenas they are but one branched into many particulars for the clearing of the peoples understanding who usually are not excellent in distinguishing and so become as new Plaisters made of an old Salve for Sores that never brake out before Such sore times were these whereof we now treat wherein every touch made a Wound and every Wound went to the Heart and made the Category of Treason swell to that bigness that it became an individuum vagum beyond all rule but the present sence of timorous Judges and a touchy King. Thus were many of the ignorant and well-meaning people in an hideous danger of the gulf of forfeiture before they found themselves nigh the brim All men do agree that Treason is a wound of Majesty but all the doubt is where this Majesty resteth originally and what is that Legiance which is due thereto the breach whereof amounteth to so high a censure for some men place all Majesty in one man whom they call an absolute Monarch Others in the Great men And others in the People and some in the concurrence of the King and body of the People And it is a wild way to determine all in one Conclusion whenas the same dependeth wholly upon the constitution of the Body Look then upon England in the last posture as the rigider sort of Monarchical Politicians do and Majesty will never be in glory but in the concurrence of the King and Parliament or Convention of Estates and so upon the whole account it will be upon the People whose welfare is the supream Law. Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orator's time and he saw the foundation of an Empire or perpetual Dictatorship in the person of the first of the Caesars any of all which might have challenged the supremacy of Majesty above the People And yet the often change of Government shewed plainly that it rested upon another pin and the Orator in express words no less when speaking of the Majesty of that Government he allotteth it not to those in chief command but defineth it to be magnitudo populi Romani Afterwards when the pride of the Emperours was come to its full pitch in the times of Augustus and Tiberius an Historian of those times in the Life of Tiberius tells us That he declared the bounds of Treason to be determined in Three particular instances of Treachery against the Army Sedition amongst the People and violating the Majesty of the People of Rome In all which men were not punishable for words but for actions and endeavours I do not herein propound the Government of the Roman Empire as a model for England but à majori may conclude that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory it is no defacing of Majesty in England to seat it upon the whole body from whom the same is contracted in the Representative and so much thereof divided unto the person of the King as any one Member is capable of according to the work allotted unto him These several seats of Majesty making also so many degrees do also imply as many degrees of wounding for it is written in Nature That the offence tending to the immediate destruction of the whole body is greater than that which destroyeth any one Member onely and when the written Law maketh it Treason to compass the destruction of the King's Person it leaveth it obvious to common sence that it is a higher degree of Treason to compass the destruction of the Representative and above all to destroy the whole body of the people Crimes that never entred into the conceit of wickedness it self in those more innocent times much less saw they any cause to mention the penalty by any written Law. Nevertheless because many sad examples had occurred
eat their own word However for the present the House of Lancaster hath the Crown entailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first precedent of this kind yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow less strange For the Parliament according to occasion as the Supream Power of this Kingdom exercised Supream Jurisdiction in order to the safety of the Kingdom as if no King had been to be found in issuing forth Writs under the Great Seal concluding of matters without the Royal Assent treating of Peace with Foreign Nations and of other matters and determining their Resolves before discovery made to the King of their Counsels making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti confirming Peace made by the King protesting against Peace made without or against their consent making Embassadours with power to engage for the Kingdom making Generals of the Army Admirals at Sea Chancellors Barons and Privy Counsellors and giving them instructions 8 H. 4. n. 73. and 76. and 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19 39. ordering the person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overswayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aims that man who shall determine the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partial in all this but being in a way of Reformation it set upon the work of reforming it self Some that are very zealous in the point of Arbitrary and Absolute Government of Kings in this Nation and in all other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shall please I do easily grant that Kings have many Occasions and Opportunities to beguile their People yet can they do nothing as Kings but what of right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statue-Laws of this Realm might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publick Affairs and therefore can discern when the general Conventions are most necessary As touching the dissolving of Parliaments against the wills of the Houses it is true that sad precedents have been of later times in that kind and so for want of due attendance Parliaments have been enforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence than produced as Arguments of power seeing it is evident that Kings themselves were no greater gainers thereby than an angry man is by his passions It is true alâ—o that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Council of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the known Law. Neither can all these Instances prove that the Kings of England have the sole and supreme power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an errour in that is like an errour in the first Concoction that spoils the whole Nutriment they ordained that the Election of Knights shall be at the next County-Court after the Writ delivered to the Sheriff That in full Court between the hours of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duly summoned and others there present shall then proceed to the Elections notwithstanding any Prayer or Commandment to the contrary That the names of the persons elected whether present or absent they be shall be returned by Indenture between the Sheriff and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriff understand but not to obey till a penalty of one hundred pound is by other Laws imposed upon him and a years imprisonment without Baibor Mainprise besides damages for false return in such cases and the party so unduly returned fined and deprived of all the Wages for his service Thus the manner of Election is reduced but the persons are more considerable for hitherto any man of English bloud promiscuously had right to give or receive a Vote although his Residency were over the wide World. But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendred them uncapable to vote or serve for any County And the like Order was made for the Burroughs That no person must serve for any City or Burrough nor give vote in Electing such as shall serve for that Town unless they be both free and resiants within that City or Burrough A Law no less wholsom than seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdom can easily sway the County-courts and make Parliaments for their own Tooth Yet this was not enough for all Elizors though of the meanest sort yet are still able to do as much hurt with their Vote as those of the best sort both for wisdom and publick mind can do good by theirs This made Elections much subject to parties and confusions and rendred the Parliament much less considerable A remedy hereunto is provided in the minority of Henry the Sixth viz. That no man should give his Vote in Elections in the County unless he hath forty shillings yearly in free Lands or Tenements and this is to be testified upon Oath of the party And more plainly it is orderded within two years after that each Elizor shall have Frank-Tenement of that value within the same County
in the French Wars the Duke of Gloucester obtained the same power and place But Henry the Sixth added a further Title of Protector and Defender of the Kingdom and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Gloucester And towards the latter time of Henry the Sixth it was granted by him to Richard Duke of York This Title carried along with it a power different from that of a King onely in honour and the person so adorned may be said to sway the Scepter but not to wear the Crown And therefore in the minority of Henry the Sixth whenas the Government was ordered by the Parliament and to that end a Protector was made and he well guarded with a Privy Council and they provided with Instructions one of them was That in all matters not to be transacted ordinarily but by the King 's express consent the Privy Council should advise with the Protector But this is not so needful in regard that it concerneth the power of executing of Laws which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall pass to the Legislative Power wherein it is evident that the Protector 's power was no whit inferiour to the King's power For First the Protector Ex Officio by advice of the Council did summon Parliaments by Writs even as the Kings themselves under their own Test and if they did not bear the Royal Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the room of a King in order to the perfecting publishing and enforcing of Law to Execution Secondly the Parliaments holden by Protectors and Laws therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdom doth utterly vanish by the personal access of the King because in all places where the King is subservient to the Kingdom or the Commonwealth the Lord Warden in his absence is conservient unto him being in his stead and not under him for the very place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the Fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdom aâ—â— it holdeth in equal force with all other Laws of the highest size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personal presence no more considerable than the presence of his shadow For the King spent three whole years in the French Wars and during that time never saw England where nevertheless in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Gloucester in the last of which this Law was made And in truth if we look upon this Title of the Kingdoms Guardianship in its bare Lineaments without lights and shadows it will appear little better than a Crown of Feathers worn onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so well deserving nor did the Nation expect any such matter from them Edward the First was a wise King and yet in his absence chose Edward the Second to hold that place he being then not above fourteen years of age Afterwards Edward the Second's Queen and the Lords of her party were wise enough in their way and yet they chose Edward the Third to be their Custos Regni then not fourteen years old his Father in the mean time being neither absent from the Kingdom nor deposed but onely dismissed from acting in the administration of the Government Edward the Third follows the same example he first makes his Brother John of Eltham Custos Regni and this he did at two several times once when he was but Eleven years old afterwards when he was about Fourteen Then he made his Son the Black Prince upon several occasions three times Lord-Warden of the Kingdom once he being about Nine years old and again when he was Eleven years old and once when about Fourteen years old Lastly Edward the Third appointed his Son Lionel Duke of Clarence unto this place of Custos Regni when as he was scarce Eight years old all which will appear upon the comparing their Ages with the several Rolls of 25 E. 1. 3 5 12 14 26. 19 E. 3. If therefore the work of a Custos Regni be such as may be as well done by the Infants of Kings as by the wisest Counsellor or most valiant man it is in my opinion manifest that the place is of little other use to this Commonwealth than to serve as an attire to a comely person to make it seem more fair because it is in fashion nor doth it advance the value of a King one grain above what his Personal endowments do deserve Hitherto of the Title and Power the next consideration will be of the original Fountain from whence it is derived wherein the Precedents are clear and plain that ordinarily they are the next and immediate Off-spring of Kings if they be present within the four Seas to be by them enabled by Letters-Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their Authority and if it saw need changed enlarged or abridged both it and them Thus was the Duke of Gloucester made Lord Warden in the time of Henry the Fifth he being then in France in the room of the Duke of Bedford The like also in Henry the Sixth's time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that Title the Title of Protector Afterward at the Duke's going over into France they committed that service to the Duke of Gloucester if I forget not the nature of the Roll during the Duke of Bedford's absence and with a Salvo of his right Not unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the Sixth whereof more hereafter in the next Paragraph Lastly The limitation of this high power and Title is different according to the occasion for the Guardianship of the Kingdom by common intendment is to endure no longer than the King is absent from the Helm either by voluntary deserting the work or employment in Foreign parts though united they be under the Government of the same King together
rest looked to the Provisors more strictly than his Predecessors had and not onely confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annual Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute And further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Laws had saved the right to the true patron both against Pope and King. And thus the English Kings were Servants to the Church of England at the charges of Rome whilst the Popedome being now under a wasting and devouring Schism was unable to help it self and so continued until the time of Henry the Sixth at which time the Clergie of England got it self under the power and shadow of a Protector a kind of Creature made up by a Pope and a King. This was the Bishop of Winchester so great a man both for Birth parts of Nature Riches Spirit and Place as none before him ever had the like For he was both Cardinal Legate and Chancellor of England and had gotten to his aid the Bishop of Bath to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First More craftily by colloguing with the Nobility who now had the sway in the Kings Minority but they would none An answer is given by the King that he was too young to make alterations in matters of so high concernment yet he promised moderation The Clergie are put to silence herewith and so continue till the King was six years elder and then with Money in one hand and a Petition in the other they renew their suit but in a more subtile way For they would not pretend Rome but the English Churches Liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy See but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Laws Their Clonclusion therefore is a Prayer That the King will please to allow the Jurisdiction of their Ecclesiastical Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependant on the See of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might endanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergie are put to a retreat from their Reserve at Rome all which they now well saw yet it was hard to wean them The Cardinal of Winchester was a great man and loth to lay down his power but his own Tribe grew weary of him and his power For the greater some Church-men are unless they be better than men the inferiour and better Church-men are worse than men At length therefore the Cardinal is Vnlegated and that power conferred upon the Archbishop of Canterbury a man formerly well approved but by this very influence from Rome rendred suspected Which he perceiving protested against the exercise of the Jurisdiction Legatine without the Kings allowance and so mannerly crept into the Chair The English Kings and Clergie having thus attained the right discerning of each other begin to take up a new way of policy which was to hold nothing of the Popedom but the Form of Worship and Discipline but as touching Jurisdiction they held it a high point of wisdom either to fetch it nigh at home or to be silent in the matter having now found a main difference between the Popes Will and the Church-Law and therefore as formerly the Convocation and Parliament joyned in excluding of Foreigners from Church-livings under the notion of Intelligencers to Enemies abroad So neither now will they allow any provisions for English men and upon this ground the Dean and Chapter of York refused to admit the Bishop of Lincoln to the See of York although assigned he was thereto by Pope Martin and he the darling of Nations being by joynt consent advanced to the Triple Crown that had been formerly tripled amongst three Popes and troubled all Europe And whereas during the Tripapalty much money had been levyed here in England to serve for the recovery of the Popedom to one of English interest now by joynt consent the same is seized upon and stopped as fewel from the fire and spent by Henry the Fifth in the recovery of a Kingdom in France that should have been employed in recovery of a Popedom at Rome These things concurred to give a wound to the Popedom that was never cured to this day Nevertheless the English Clergie was no loser by all this but gained in the whole sum For as it made them more depending on the Crown so it made the Crown more fast to them from which they had received more real immunities and power than the Pope ever did or was able to give them and might expect to receive many more What personal respects these three Kings shewed them hath been already touched Henry the Sixth added one favour which made all the rest more considerable Hitherto they had used to meet in Convocation as upon the interest of Rome and little notice was taken of them now the Nation owns them and in some respects their work and it is granted That the Clerks of Convocation called by the Kings Writ and their Menial Servants shall have such priviledge in coming carrying and going as the Members of the Parliament have So as though they be not Members yet they are as Members if they assemble by the Kings Writ and not onely by the power of the Legate or Metropolitan The antiquity of this Court is great yet not so great as hath been supposed nor is it that Court of the Ordinary called the Church Gemot mentioned in the Laws of Henry the First as not onely the works thereof therein set down do sufficiently declare but also it is evident that in Henry the Second's days the Grand Councils of this Kingdom were joyntly mixed both of Clergie and Laity Nor could the Clergie shut the Laity from their Councils till about the times of Richard the First or King John. From which time forward the Laity were so far from protecting of them that till these times now in hand all their care was to keep them from violating the Liberty of the people That they were many times notwithstanding called together by the Kings Writ before these times hath
also been cleared by another Pen. That their work at such times was to advise concerning such matters as should be propounded to them by the King in Parliament their Summons do shew the particulars whereof for the most part concerned supplies of Money from the Church-men And yet sometimes matters of great moment were debated therein As in a Convocation summoned by Henry the Fifth in his ninth year the preheminence of Pope Eugenius above the Council of Bazil was debated and as much as they could they determined the same The credit of their decisions in former time I believe was not much amongst the people because the men were looked upon with an evil eye Now that the Parliament seemeth to own them in their way and to protect them their determinations are somewhat The Church-men espy their opportunity and whilst the benevolent influence of the State is in its first heat they improve it in this manner The times were now come about wherein light began to spring forth conscience tobestir itself and men to study the Scriptures This was imputed to the idleness and carelesness of the Clergie who suffered the minds of young Scholars to luxuriate into Errours of Divinity for want of putting them on to other Learning and gave no encouragement to studies of humane Literature by preferring those that were deserving The Convocation taking this into consideration do decree That no person should exercise any jurisdiction in any Office as Vicar-general Commissary or Official or otherwise unless he shall have first in the University have taken Degrees in the Civil or Canon Law. A shrewd trick this was to stop the growth of the study of Divinity and Wickliff's way and to imbellish mens minds with a kind of Learning that may gain them preferment or at least an opinion of abilities beyond the common strain and dangerous to be meddled with Like some Gallants that wear Swords as Badges of Honour and to bid men beware because they possibly may strike though in their own persons they may be very Cowards And no less mischievously intended was this against the rugged Common-Law a Rule so nigh allied to the Gospel-way as it favoureth Liberty and so far estranged from the way of the Civil and Canon-Law as there is no hope of accommodation till Christ and Anti-Christ have fought the field Thus much of the Church of England in relation to the State now as it is absolutely considered in regard of the several degrees of persons therein Although these three Kings were much endeared to the English Clergy yet the difference between the Laity and them growing high the King 's principal care is now to keep an even hand between them both for he that will back two Horses at once must keep them even or put his joynts to the adventure First Henry the Fourth granteth That no more shall be paid to Rome for the first-fruits of Archbishops and Bishops than hath been anciently used The occasion hereof was to prevent the horrible mischief and damnable custom of Rome for such are the very words of that Statute unto which the Clergy gave their Vote if not the first Vote and therefore certainly did neither believe nor honour that infallible Chair as their own Mother nor did they bear her Yoke further than their own benefit and reason of State did require For though the immediate benefit of this Law did descend upon the Prelacy yet it also much concerned the interest both of the honour and benefit of the Nation that the Clergy should not be at the Pope's pleasure to tax and assess as he thought good Secondly Henry the Fifth added unto the Prelacy some kind of increase both of Honour and Power viz. to visit Hospitals that were not of the King 's own foundation and to reform abuses there for the Patrons either had no power to punish or will or care to reform them And thus upon the point although they lost a Right yet they gained ease Thirdly The same King confirmed by a Statute unto Ordinaries the cognizance of Accounts of Executors for their Testators Estates which formerly was granted by the Canon-Law but they wanted power to execute and a Right to have and receive In all these the Clergie or Prelacy were the immediate gainers In as many other things the people were made gainers and yet the Clergie were no losers otherwise than like the Kite of that prey which was none of their own First They refused formerly to grant Copies of Libels either thereby to hinder the course of Prohibitions or to make the Copies the moredear and Money more cheap with them Henry the Fifth finding this a grievance to the people passeth a Law That all Ordinaries shall grant the Copies of Libels at such time as by Law they are grantable Secondly As the probate of Wills had anciently belonged to the Ordinary by the Canon-Law and formerly also confirmed to them by the Parliament so it also regulated and settled the Fees for such Service But the Clergy having been ever under the noutriture of their Mother Rome that loved to exceed they likewise accounted it their liberty to take what they could get But the nigher they come to engage with Kings in their Government according to Law the more reformed they grow Formerly Edward the Third had settled their Fees but they would not hold to the rule Now the Law is doubled by Henry the Fifth with a penalty of treble damages against Delinquents Furthermore the very Priests could not contain their Pater-Nosters Requiems Masses and such Wares they had engrossed and set thereof what price they pleased The Market was risen to that height that Edward the Third undertook to set a rate upon those Commodities but that also would not hold long Henry the Fifth he sets a certain stipend somewhat more than Edward the Third had done and yet less than the Priests had formerly Lastly Some Laws were made wherein the Commonwealth gained and the Church were losers First Whereas the Church-men formerly held all holy things proper and peculiar to their own Cognizance especially such as concerned the Worship of God the Parliament now began to be bold with that and never asked leave It had now for a long time even since the Saxon times been the unhappy condition of this Church of England amongst others to decay continually in Piety and right Devotion but through the light that now revived and God's goodness it in these times came to pass that the people did entertain some sense of their duty towards God more than formerly and begin to quarrel the abuses done to the Lords day in the manner of the keeping thereof London hath the honour for beginning this Reformation by an Act of their Common Council The Parliament within seven years after that engage the whole Kingdom in that service though therewith also are adjoyned other holy Feasts then holden and all Fairs and Markets are enjoyned to cease on that
the people for the present must endure In deposito of the King and other persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather than lie under continual darkness and by waiting for the Sun-rising be in a better preparation thereunto For the words of the Statute are That all must be done without any partial respect or affection to the Papistical sort or any other Sect or Sects whatsoever Unto this Agreement both parties were inclined by divers regards For the Romanists though having the possession yet being doubtful of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted Faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of Conscience was then a pleasing Theme as well as liberty of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles and therefore as Supream Head they held him most meet to have the care of this matter for still this Title brings on the Van of all these Acts of Parliament On the other side that party that stood for Reformation though they began to put up head yet not assured of their own power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probability might find a better they therefore also cast themselves upon the King who had already been baited by the German Princes and Divines and the outcries of his own People and possibly might entertain some prejudice at length at that manner of Worship that had its original from that Arch-enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsuitable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shews that this was not derived from the ancient Right of the Crown now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First This power is given to this King not to his Successors for they are left out of the Act so as they trusted not the King but Henry the Eighth and what they did was for his own sake Secondly They trusted the King but he must be advised by Counsel of men of skill Thirdly They must not respect any Sect or those of the Papistical sort Fourthly All must be according to Gods Word and Christs Gospel And Lastly Nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over-long For it was but a temporary Law and during the present condition of affairs Nor did the King or People rest upon this Law for within three years following another Law is made to confirm what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdom shall seem convenient Thus the Kings Injunctions already set forth were established all opposal to them inhibited and the King hath a power of Lawing and Unlawing in Christ's Kingdom and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gainsay it as Cranmer said The King loves his Queen well but his own opinion better For new things meeting with new love if it be once interrupted in the first heat turns into a displeasure as hot as the first love Nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good Conscience All this though much more than any of his Predecessors ever attained was nevertheless not enough till his Title was as compleat The Pope had fashioned him one now above twenty years old for his service done against Luther and others of that way and sent it to him as a Trophee of the Victory this was Defender of the Faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royalizing of that of Ireland amongst the rest A third Prerogative concerned the Kings power in temporal matters And now must England look to it self for never had English King the like advantage over his People as this man had His Title out-faced all question left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home than all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of Civil Wars enamoured with the first tastes of Peace and Pleasures whiles as yet it was but in the blushing child-hood over-awed by a strange Giant a King with a Pope in his belly having the Temporal Sword in his hand the Spiritual Sword at his command Of a merciless savage nature but a word and a blow without regard even of his bosome-Companions What can then the naked relation of a Subject do with such an one if Providence steps not in and stops not the Lions mouth all will be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperour sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperour and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the Prey that if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affairs of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of sudden exigencies and for some small time during the juncture of these important affairs that seeing likewise at home the point concerning Religion is coming to the Test the minds of men are at a gaze their Affections and Passions are on their Tiptoes It is reason the King should steer with a shorter Rudder that this care might meet with every turn of Providence which otherwise might suddenly blow up the Peace and good Government of this Nation These and the like represented a fair face to that
which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I mean a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Council whose names hereafter follow with such penalties as by them shall be thought meet shall be of equal force by an Act of Parliament provided it shall not extend to the forfeiture of Estates or Priviledges nor to loss of Life but in cases particularly mentioned in the Law Provided no Proclamation shall cross any Statute or lawful or laudable Custom of this Realm All which at length comes to be demanded by a formal Bill with as ill-favoured a Preface as the matter it self which was much worse e're it was well liked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner abovesaid neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For instead of a Legislative power which he grasped at for himself he received it in common with his Council and so becomes engaged neither to alter nor destroy that Brotherhood if he intended to reap any fruit of this Law leaving the point in doubt whether his Gain or Loss was the greater For this Law thus made for this King these Counsellors and these times and occasions can be no Precedent to the future unless to inform Kings that the Parliament hath a power to give more Authority and Prerogative to Kings than they or the Crown have by common Right and to give it with such limitations and qualifications as seemeth good to them And secondly That even Henry the Eighth acknowledged that the Legislative power was not in the Crown nor was the Crown capable thereof otherwise than it was conferred by the Parliament Onely Steven Gardiner might glory in this Atchievement having for the present obtained much of his ends by perswading the King that Forein Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintain And therefore if he meaned to gain better correspondency amongst these Princes he must engage more resolvedly to the Fundamentals of the Worship though he shook off some slighter Ceremonies with the Romish Supremacy for he knew that they were willing enough with the latter though the other could not go down with them Thus did Forein Correspondency float above whenas the Church as then it stood was underneath and gave the tincture to every Wave And it was holden more safe by the Romish party to trust the King thus attempered with the Legislative power in the Church-matters than the rough Parliament whose course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the chief Officers of State and of the Houshold were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King onely was of the Quorum All this yet further appears in the penalty for by a Proviso it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended onely to Fine and Imprisonment unless in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first Clause of any positive Law that ever intimated any power in the King of such Cognizance and punishment of Heresie Too weak a principle it is to settle a Prerogative in the King and his Successors as Supream Head of the Church thus by a side-wind to carry the Keys of Life and Death at their Girdle and yet a better ground cannot I find for the Martyrdom of divers brave Christians in those times than this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 38 H. 8. c. 26. formerly mentioned to come more boldly upon the Stage This was one wound to the Legislative power of the Parliament thus to divide the same Another ensues that in its consequences was no less fatal to that power which remained and it was wrought by some Engine that well saw that the Disease then so called grew to be epidemical amongst the more considerable party in the Kingdom that the Lady Jane Seymor now Queen was no friend to the Romanists that she was now with Child which if a Son as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undo all as in the issue all came so to pass To prevent this nevertheless they fancy a new conceit that Laws made by English Kings in their minority are less considerately done than being made in riper years And so by that one opinion countenanced a worse which was that the Legislative Power depended more upon the judgement of the King than the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an all-sufficient Prince as Henry the Eighth conceived himself to be Upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of Twenty and four years when Laws by him are made to adnul the same by Letters-patents after such Prince shall attain the said age of Twenty four years Thus the Arms of the Parliament are bound from setling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more fair The Parliament was now in its minority and gives occasion to the Reader to bewail the infirmities of the excellencie of England A fourth advance of Prerogative concerned the Executive Power in Government of the Church This had formerly much rested in the Prelacy and that upon the chief Praelatissimo at Rome now there is found in England a greater Prelate than he the Pope was already beheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Archbishops within his Dominions by Conge d'eslire and that the party once elected shall swear Fealty and then shall be consecrated by Commission and invested but if upon the Conge d'eslire no Election be certified within Twelve days the King shall by Commission cause his own Clerk to be consecrated and Invested The occasion that first brought in this President was the access of Cranmer to the See at Canterbury for though the Headship had been already by the space of Two years translated from Rome to England yet the course of Episcopizing continued the same as formerly it had been I mean as touching the point of Election For though
Right of Queen Elizabeth And upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the Eighth after the determination of his Right Line and yet she was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs Nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. Nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after-Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise than as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the Sixth Queen Mary or Queen Elizabeth until they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the Eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the Sixth Queen Mary or Queen Elizabeth until those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the several Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any engagement of the People to assist and defend her and the Heirs of her Body otherwise than with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had those Oaths been otherwise understood the Crown had by the virtue of them been pre-engaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the Sixth for ever Secondly the same power that the Parliament exercised in ordering the course of Succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these times were full of Novelties The Crown had formerly sitted a Childs head more than once but it never tried to fit a Womans head since the Saxons times till now that it must make trial of two France might afford us a trick of the Salique Law if it might find acceptance And the unsetled state of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the Eighth to lead the way chose rather to pursue a Rule than to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Child A bold Adventure I say it was but that Henry the Eighth was a bold Leader and yet the bolder it was if the consequence be considered For Queen Mary as a Woman brought in one new Precedent but in her Marriage a worse for she aimed not onely at a Foreign Bloud but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm endangered both The matter was long in debate between the Spanish and English and now had busied their Wits about ten years at length a Supremacy is formed suitable to the Lord and Husband of Queen Mary that could not be content to be one inch lower than her self Philip had the name of a King and Precedency and in many cases not without the Allegiance of the English. Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem Coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the Royal Assent and in Commission Letters patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must Reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an Infant-King unless she be married onely to her people This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the people otherwise desire her Marriage than in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Foreigner This was soon espied by Foreign Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadors that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choice of some Foreign Prince who neither by Power or Riches should be able to prejudice the interest of any of her Neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest than by trial they could find And the Arch-Duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King. 3. That no Foreigner should ever intermeddle in the Rule and Government of the Church or Commonwealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferiour Prince that durst not look so high or else she did but make semblance till she was nigh Forty years old and in all declared that she liked not her Sister Maries choice To these two Powers of Determining and Distributing I shall adde a third of Deputing which the Parliament exercised as formerly it had done Henry the Eighth had in Ecclesiastical matters exercised a power beyond the Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the Sixth's time with some Additionals By