left the Duke to stand or fall before some other power which came to passe upon the entry of the next Successor The greatest trouble of his Government arose from the prosecution of a designe of his Grand-Fathers Henry the seventh for the uniting of the two Crownes of England and Scotland by marriage and settling an induring peace within this Isle and unto this worke all were ayders in both Nations but the Enemies of both But Gods wayes are not as Mans its a rare example to finde out one Marriage that did ever thrive to this end England meaned well in profering Love but the wooing was ill favoredly carried on by so much Blood Lastly As the Government was now tender so was it carried with much compliance with the People which ever gives occasion to such of them that are irregular to be more and such as are wel governed to be less because though pleasing it be yet it is with lesse awe and spirit which renders their obedience at the best but carelesse and idle unlesse such as are very consciencious be the more carefull over their owne wayes by how much their superiours are the lesse NOt thus was Queen Mary but like a Spaniard shee overruled all relations and ingagements by designe she was about forty yeares old and yet unmarried when shee came to the Throne it may seeme shee wanted a minde to that course of Life from naturall abstinency or was loath to adventure her feature which was not excellent to the Censure of any Prince of as high degree as shee held her self to be or her value was unknown so as to persons of meaner Interests shee might seeme too much above and to those of greater too much beneath Or possibly her Father was loath to let the World know her Title to the Crowne till needs must or to raise up a Title for an other man so long as he had hope of a Son of his own to succeed him and yet had formerly designed her for a wife to Charles the fifth and afterwards to the Dauphine of France Or it may be her self had set a command upon her self not to change her Estate till shee saw the course of the Crown either to or fro however the time is now come that shee must marry or adventure her Woman-hood upon an uncertaine and troublesome state of Affaires Shee liked the Lord Courtnoe above the Prince of Spaine but feared he would not designe with her Shee held him not unmeet for her degree for shee feared he was good enough for her Sister that then also had the Title of a Kingdome waiting so nigh her person as shee was an object of hope to her Freinds and feare to her Enemies And yet Queene Mary married the Prince of Spaine It may be it ran in the blood to marry into their owne blood or rather shee was thereto led by reason of state partly to inable her with greater security in the reseisure of her Kingdome in the Popish Religion wherein shee knew shee had to do with a People not easie to be reduced where Conscience pretended reluctancy and partly to assure her Dominion against the outworks of the French and Scottish designes And so shee yeilded up the Supremacy of her Person to the Prince of Spaine but thanks to the Nobility the Supremacy of the Kingdome was reserved to her own use for it was once in her purpose to have given up all to the man rather then to misse of the man And yet their condition was not much comfortable to either the peoples dislike of the match sounded so loud abroad that when the Prince was to come over the Emperour his Father demanded fifty Pledges for his Sons safty during his abode in this Land which was also denied when he was come over the English Feare the Spanish Tiranny and the Spanish the old Saxon entertainment of the Danes so both ly at their close guards as after some time the King and Queen did no lesse for the Queen was either never earnest in her affection or now much lesse finding his Body diseased and his Minde lingring after unlawfull game On the other side the King not finding that content in her Person especially after her supposed Concepcion that he expected looked to his owne Interest apart from hers and thereby taught her to do the like and this she thought cost England the losse of Callis and he Spaine the losse of many advantages that might have been obtained and was expected from this conjunction Thus by the severall interests betweene the King Regnant and the Queen Regent the Government of England became like a knot dissolving neither fast nor loose Towards the People she might well be reserved if not rigid for she knew her entry was not very acceptable though accepted and that her designe was contrary to her ingagements and therefore it was vaine to think to please her self and pleasure them Nor did she much busie her thoughts therewith that abominated trick of Impost upon Merchandise she brought into fashion which had by many publique acts been damned for the space of two hundred years this was done without either shame or fear for if the People turned head she knew she had a good reserve from Spaine and the People might very well consider of that though for her part she desired not much to improve that Forraine Interest because she might well see that Spaine designed to keep England so far beneath that France might not get above And that Phillip neither loved the double Crowne of England no nor the triple Crowne at Rome otherwise then in order to that of Spaine This distance between her and her King wrought her to a more nigh dependency upon her Councell and English Nobility and so became lesse discerned in her Government although questionlesse she did much and wanted not Wisdome or courage to have done more but that she was not wholly her owne Woman All men do agree that she was devout in her kind of profession and therin as deeply ingaged as her Brother Edward had beene in his though it may be out of tendernesse of Conscience but she out of a Spanish kind of gravity that indures not change and whereunto she was well aided by her Clergy who were her beloved for her Mothers sake and now also so much the more sowre by how much the nigher to the bottome It s the lesse wonder therefore if the zeale of these times burnt into a flame that at length consumed even those that kindled it In one thing more above all the rest she acted the part of her Sect rather then her Place and the same contrary to the advice of her Ghostly Fathers and all rules of policy and the agreement between her King and self upon Marriage which was the ingageing of England in the Warr at Saint Qui ntins against the French contrary to the Nationall league formerly made Neverthelesse the issue was but sutable for though the English
shall be imprisoned untill he shall satisfie the Defendant of his damages And furthermore shall make Fine and Ransome 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 Chancellor to doe according to his discretion And thus the Chancery obtained power to award damages which they never had formerly and the Chancellor a Precedency both in the Chancery and of the Councell in the Court of Starre-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 Cardinall and Legate è Latere or Arch Bishop Lord Treasurer and Legate è Latere as these dayes 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 uprightnesse they make the Scepter stoope by stirring up of envy in the Nobility and indignation from the People For seldome is it seene that Advancements are fed from the Crowne though they be bred from thence but either maintained by new supplies from the Peoples purses or the ruine or decay of some Offices more ancient then themselves or both And such was the condition of the Chancellor he sucked fat from beneath and blood and Spirits from the Grand chiefe Justiciar of England and so reduced that Honourable Potentate unto the Degree of chiefe Justice of the Kings 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 then a Register or the Kings remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuite of the Writings in his custody and questionlesse Eo usque its sutable to all the reason in the World that he should be of the Kings sole Nomination and Election But when it befalls that in stead 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 Seale of the Kingdome with the continuall growing power occasionally conferred upon him by the Parliament He is now become no more the Kings Remembrancer but the Lord Chancellor of England and Supreame Officer of State And it seemes but reasonable that he should hold his place by publique 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 worke for another must give the other that Honour of Electing him thereto nor was this laid aside or forgotten by these times but a claim was put in for the Election or allowance of this principall Officer amongst others the Parliament obtaining a judgement in the case by the Kings 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 Royall Assent in Parliament or declare himselfe Legally in that manner by Proclamation CHAP. V. Of Admiralls Court. THis is a third Court that maintained the Kings judicatory power in a different way from that which is commonly called the Common law and by many is therefore supposed to advance the Kings Prerogative but upon mistaken grounds It is very true that the way is different from the common rode both in its originall and in the course of proceedings nor could it other be considering the condition of the Nations and the People of the same interested in common traffique The people thus interested as much differed from the other sort of dry men if they may be so called as Sea from Land and are in nature but as march men of severall Nations that must consenter in some third way for the maintenance of commerce for peace sake and to the end that no Nation may be under any other Law then its owne The condition of the Nations in the times when civillized government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the generall grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and downe with it that men might know upon what tearmes they held their owne wheresoever they went and upon what tearmes to part with it for their best advantage in its originall therefore this Law may be called Imperial and likewise in the process because it was directed in one way of triall and by one law which had its first birth from the Imperiall power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Neverthelesse this became no Gemm of Prerogative to the English Crowne for if England did comply with forraine Natives for its owne benefit it being an Iland full of the Sea and in the common rode from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but sutable to it selfe and it did so comply as it saved the maine Stake by voluntary entertaining those Laws without being imposed upon by Imperiall power for the Saxons came into this Kingdome a free People and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the Kings Edict For though it were granted that Richard the first reduced the Sea-laws in the Isle of Oleron yet that the same should be done without advise of Parliament in his returne from the holy Land is to me a riddle considering what Histories doe hold forth concerning of his returne through Germany nor can that be good evidence to intitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon laws statutes Franchises and Customes Estabilished and that this Estabilishment was by the King and the Councell This Law was of a double nature according to the Law of the Land one part concerning the Pleas of the Crowne and the other between party and party for properly the Kings authority in the Admiralty is but an authority of Judicature according to Laws established which both for processe and sentence are different from the Common Law as much as the two Elements do differ yet not different in
sore People yet many times Lawes are said to be many when as they are but one branched into many Particulars for the clearing of the Peoples understanding who usually are not excellent in distinguishing and so becomes as new Plaisters made of an old Salve for sores that never brake out before Such sore times were these whereof we now Treate wherein every touch made a wound and every wound went to the heart and made the Category of Treason swell to that bignesse that it became an individuum vagum beyond all rule but the present sence of timerous Judges and a touchy King Thus were many of the ignorant and wel meaning people in an hideous danger of the gulfe of forfeiture before they found themselves nigh the brimme 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 therto 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 when as the same dependeth wholy upon the constitution of the body looke then upon England in the last posture as the rigider sort of monarchiall polititians do and Majesty will never be in glory but in the concurrence of the King and Parliament or convention of Estates so upon the whol account it wil be upon the people whose welfare is the supream Law Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orators time and he saw the foundation of an Empire or perpetuall 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 pinne and the Orator in expresse words no lesse when speaking of the Majesty of that Government he allotteth it not to those in cheife command but defineth it to be magnitudo populi Romani afterwards when the pride of the Emperors was come to its ful pitch in the times of Augustus Tiberius an Historian of those times in the life of Tiberius tels 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 al which men were not punishable for words but actions and indeavors I do not herein propound the Government of the Roman Empire as a modell 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 s 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 severall seats of Majesty making also so many degrees do also imply as many degrees of wounding for it s writen in nature that the offence tending to the immediate destruction of the whol body is greater then that which destroyeth any one member only and when the written Law maketh it treason to compasse the destruction of the Kings Person it leaveth it obvious to common sense that its a higher degree of Treason to compasse the destruction of the representative and above all to destroy the whole body of the People crimes that never entred into the conceit of wickednesse it selfe in those more innocent times much lesse saw they any cause to mention the penalty by any written Law Neverthelesse because many sadd examples had accurred within the memory of this present age of the danger of the person and honor of Kings and yet on the otherside they saw that in such cases of Treason the Kings honor was made of retching leather and might easily be strained within the compasse of a wound of Majesty therefore Edward the third imitating Tiberius reduced the crime of wound of Majesty in the Person of the King into certaine particular instances out of the compasse whereof the Judges of the Law in ordinary course must not determine Treason These concerne either the safety of the Person of the King or of the succession in the Royall Throne or lastly the safegard of the publique right by the board and privy seale the vallue of Mony and by persons in matters of judicature judicially presiding all of them reflecting upon the King considered in his politick capacity for otherwise many crimes might have beene mentioned more fatally reflecting upon the King in his naturall capacity which nevertheless are omitted as not worthy of so high a censure Other Treasons are left to the determination of the Parliament as occasion should offer it selfe whereof divers examples of a new stamp accurred within forty yeares next ensuing which were of a temporary regard and lived and died with the times To these two notions of Majesty and treason I must add a third called Legiance for it is that which maketh Majesty to be such indeed and lifteth it into the Throne and whereof the highest breach makes Treason and because that which hath been already sayd reflecteth upon an opinion or rather a knot of opinions for I find them not punctually adjudged in Calvins case I must a little demur to them because as their sense is commonly taken it alters the fundamental nature of the Government of this nation from a commonweal to a pure Monarchy In handling of this case the ho. Reporter took leave to range into a generall discourse of legiance although not directly within the conclusion of the case and therin first sets down the general nature therof that it is a mutual bond between an English King and his people and then more particularly sets forth the nature of this bond in the severall duties of obedience and fealty fo 5. a. and those also in their severall properties Viz. naturall absolute fo 7. a. due to the King omni soli semper fo 12. a. in his naturall and not politick capacity fo 10. a. whereas he saith this bond is natural he meaneth that its due by birth fo 7. a. By absolute if I mistake him not he meaneth that it is indefinite fo 5. b. Viz. not circumscribed by Law but above Law and before Law fo 13. a. and that Laws were after made to inforce the same by penalties fo 13. b. and therefore he concludeth that this legiance is immutable fo 13. b. and fo 14. a. Thus having stated the point as truely as I can both for the nature of legiance and the object thereof Viz. the King and not the people otherwise then in order to the safety
have a Parliament wherein the People should have no more Religion then to beleive nor Learning then to understand his sense nor wisedome then to take heed of a Negative Vote But it befell otherwise for though it was called the Lack-learning Parliament yet had it well enough to discern the Clergies inside and Resolution enough to enter a second claime against the Clergies Temporalties and taught the King a Lesson That the least understanding Parliaments are not the best for his purpose For though the wisest Parliaments have the strongest sight and can see further then the King would have them yet they have also so much wisedome as to look to their own skins and commonly are not so venterous as to tell all the World what they know or to act too much of that which they doe understand But this Parliament whether wise or unwise spake loud of the Clergies superfluous Riches and the Kings wants are parallel'd therewith and that the Church-men may well spare enough to maintaine fifteen Earles fifteen hundred Knights six thousand two hundred Esquires and one hundred Hospitalls more then were in his Kingdome This was a strong temptation to a needy and couragious Prince but the Arch-Bishop was at his elbow the King tells the Commons that the Norman and French Cells were in his Predecessors time seized under this colour yet the Crowne was not the richer thereby he therefore resolves rather to add to then diminish any thing from the maintenance of the Clergy Thus as the King said he did though he made bold with the Keyes of Saint Peter for he could distinguish between his owne Clergy and the Romane The People are herewith put to silence yet harbour sad conceits of the Clergy against a future time which like a hidden fire are not onely preserved but increased by continuall occasions and more principally from the zeal of the Clergy now growing fiery hot against the Lollards For that not onely the People but the Nobles yea some of the Royall blood were not altogether estranged from this new old way whether it was sucked from their Grand-Father Duke John or from a Popular strain of which that House of Lancaster had much experience I determine not These were the Dukes of Bedford and Glocester Bedford was first at the Helme of Affaires at home whiles the King acted the Souldiers part in France as ill conceited of by the Clergy as they sleighted by him At a Convocation once assembled against the Lollards the Duke sent unto their Assembly his Dwarfe as a great Lollard though he was a little Man and he returned as he went even as Catholique as any of them all Non tam dispectus à Clero quam ipse Clerum despiciens atque eludens This and some other sleights the Clergy liked not they therefore finde a way to send him into France to be a Reserve to his Brother And in his roome steps forth Humphrey Duke of Glocester that was no lesse coole for the Romane way then he Henry the Fifth was not more hearty in Romes behalf for although he was loath to interrupt his Conquest abroad with contests at home yet he liked not of advancements from Rome insomuch as perceiving the Bishop of Winchester to aspire to a Cardinals Hat he said that he would as well lay aside his own Crowne as allow the Bishop to take the Hat Nor was he much trusted by the Clergy who were willing he should rather ingage in the Wars with France then minde the Proposalls of the Commons concerning the Clergies Temporalties which also was renued in the Parliament in his dayes Above all as the Lancastrian House loved to looke to its own so especially in relation to Rome they were the more jealous by how much it pretended upon them for its favour done to their House And therefore Henry the Fourth the most obleiged of all the rest looked to the Provisors more strictly then his Predecessors had and not only confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annuall 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 Lawes 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 whiles the Popedome being now under a wasting and devouring Scisme was unable to help it selfe and so continued untill the time of Henry the Sixth at which time the Clergy of England got it selfe under the power and shadow of a Protector a kinde 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 the like for he was both Cardinall Legate and Chancellour of England and had gotten to his aide the Bishop of Bathe to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First more craftily by collogueing 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 alteration in matters of so high Concernment yet he promised moderation The Clergy are put to silence herewith and so continue till the King was six yeares elder and then with Money in one hand and a Petition in the other they renue their Suit but in a more subtill way For they would not pretend Roâ—e 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 Sea but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Lawes Their Conclusion is therefore a Prayer That the King will please to allow the Jurisdiction of their Ecclesiasticall Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependent on the Sea 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 indanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergy are put to a retreat from their reserve at Rome all which they now well saw yet it was hard to wean them The Cardinall of Winchester was a
Councels and unto that had also a binding Power in making Lawes Decrees and Decretalls 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 limitations and qualifications that its evident it never was in the Crowne or rightly belonging thereto First nigh three yeares after this recognition by the Clergy in their Convocation it is urged upon them and they passe 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 provinciall or other unlesse 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 honor of their Preisthood which binds their Wills and Consciences the other the Act of Parliament which bindes their Powers so as they now neither will nor can start Neverthelesse there is nothing in this Law nor in the future practise of this King that doth either give or assert any power to the King and Convocation to binde 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 then any of the Kings Predecessors ever had in their possession A second Prerogative was a definitive power in point of doctrine and worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinances according to Gods word and Christs Gospell by the Kings advise and confirmation by Letters Patents under the great Seale at any time hereafter made and published by the Arch-Bishops Bishops and Doctors now appointed by the King or the whole Clergy of England in matters of the Christian faith and lawfull rights and ceremonies of the same shall be by the People fully beleeved and obeyed under penalties therein comprized Provided that nothing be done contrary to the Lawes and Statutes of this Realme A Law of a new birth and not an old Law newly revived or restored This the present occasion and the naturall constitution of the Law do fully manifest The occasion was the present Perplexity of the People for in stead of the Statute Ex officio which was now taken away the six articles commonly called the six stringed whip was gotten into power by a more legall and effectuall originall 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 forrain pretentions the other which was more difficult for the liberties of the consciences of multitudes of men of severall 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 worke would be long require much debate and retard all other affaires of the Common-wealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that worke 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 mistery of Religion to settle the same for the present till the Parliament had better leisure the People more light and the mindes of the People more perswaded of the way Thus the Estates and Consciences of the People for the present must indure 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 then lye under continuall darknesse 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 partiall respect or affection to the Papisticall sort or any other sect or sects whatsoever Unto this agreement both parties were inclined by diverse regards For the Romanists though having the possession yet being doubtfull 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 Theame as wel as libertie 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 meete to have the care of this matter for still this title brings on the Vann 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 owne Power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probabililty might finde a better they therefore also cast themselves upon the King who had already been well baited by the German Princes and Divines and the outcries of his owne People and possibly might entertain some prejudice at length at that manner of woship that had its originall from that Arch enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsutable 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 shewes that this was not derived from the ancient right of the Crowne 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 owne sake Secondly they trusted the King but he must be advised by Councell of men of Skill Thirdly they must not respect any sect or those of the Papisticall 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 affaires Nor did the King or People
the People However unequall it may seem yet both that and other advantages were gained by the House of Lords after the seperation was once made as many of the ancient Statutes by them only made do sufficiently hold forth which although in the generall do concern matters of Judicature wherin the Lords originally had the greatest share yet other things also escaped the Commons Vote which in after ages they recovered into their consideration again And the condition of the People in those times did principally conduce hereunto For untill the Norman times were somwhat settled the former ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the Authority of the one over the other savouring of the more absolute command in War And after that the Sword was turned into the plough-share the distance is established by compact of Tenure by Service under perill of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the minde to regard of publique Peace but the Service of the plough supporting all is underneath all yet still under the common Condition of free men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behinde seldom come into mention amongst the publique Acts of State and as uselesse set aside this was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on contention amongst the great men and thence the Barons Warrs wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promisied them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties then either King or Lords who all were Loosers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great Interest with the People and pointed him to the pin upon which the same did hang to take which away a Designe is contrived to advance the value of the Commoners and to levell the Peerage that they both may draw in one equall yoke the Chariot of Prerogative The power of the Commons in publique Councells was of some efficacy but not much Honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the People are by Election sent to the Representative and so the Lords are matched if not over-matched the People lesse admiring the Lords and more regarding themselves This was but a dazle an eclips ensues for Kings having duely eyed the Nature of Tenures between the Lords and Commons look upon it as an out-work or block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing Nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till Kings be first served and thus the power of the People is wholly devolved into the Kings Command and the Lords must now stand alone having no other foundation then the affections of the People gained by beneficense of Neighbourhood and ordinary society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the seventh found out this sore and taught his Successors the way to avoid that occasion of jealousy by calling up such considerable men to attend the Court without other wage but fruitlesse hopes or under colour of Honour to be had by Kings from the presence of such great men in their great Traines or of other Service of speciall note to be done onely by men of so high accomplishment And by this meanes Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these later dayes is become a meer jelly and neither able to serve the Interest of Kings if the People should bestir themselves nor their own any longer henceforth the Commons of England are no mean Persons and their representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Lawes and every one the publique good of the People No mans work is beneath no mans above it the best Honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English supreame Service above all and to the whole I now conclude as I found this Nation a Common-Wealth so I leave it and so may it be for ever and so will it be if we may attain the happinesse of our Fore-Fathers the ancient Saxons Quilibet contentus sorte propria A Table of the Principall Matters conteined in this Book A A Betting of Felony made Felony 299 Administration granted to the next of the Kindred 51 Admirals power from the Parliament 41. formerly under many brought into one 42. once gained jurisdiction to the high water-mark 44. and his Power regulated by Law ibid. over Sea-men Ports and Ships 44 Allegiance according to Law 18. vide Supremacy the nature thereof in general 79. its not natural 79 89. not absolute or indefinite 82. not to the King in his natural capacity 86. it obligeth not the People to serve in forrain War 10â— it is due to the person of the King for the time being 246 279. what it is in time of War and relation thereunto 247. Henry the seventh and Henry the eighth indeavoured to advance it in relation to the Crown but effected it not 204. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the People the Archbishop afterwards to the Delegates and were never setled in the Crown 227 233. vide Archbishop Archbishop hath the lawfull power of the Pope in Appeals and Dispensations Licenses and Faculties 233. the Archbishop of York looseth his jurisdiction over the Scottish Bishops 193 Arrays Commission of Array 178 vide War Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 21 Association of the People for the common safety before the Statute inabling the same 298 B. BAstardy not to be determined by the Ordinary before Summons to the Pretendors of Title to be heard 156 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Gaol delivery
thus the Parliament of England tells all the World that they hold themselves compleat without the Clergy 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 principall 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 Aire 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 Popedome in England but which stumbled most immediatly upon the greatnes of the Prelates For it was the condition of the Spirituall 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 Spirituall Dignities This Addition however it might please them yet it for a long time ere now had been occasion of such murmur and grudge in the Commons against the Clergy as though it advanced the Clergy for the present yet it treasured up a back reconing for these men and made them lyable to the displeasure of the Laity by seisure of their great places when as otherwayes their Ecclesiasticall Dignities had been beyond their reach And of this these times begin now to speak louder then ever not onely by complaints made in Parliament by the People but also by the Lords and Commons in Parliament to the King that the Kingdome had been now long and too long time governed by the Clergy to the disherison of the Crown and therefore prayed that the principall Offices of the Kingdome might henceforth be executed by the Laity and thus the stir arose between the Lords Temporall and Spirituall each prevayling or loosing 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 Clergy loved him But the worst or rather the best is yet behinde Outward Power and Honourable places are but undersetters or props to this Gourd of Prelacy that might prove no lesse prejudiciall by creeping upon the ground then by perking upward For so long as Error abideth in the Commons Truth can have little security amongst Princes although it cannot be denyed but it s a good signe of a clear morning when the Sun rising glorieth upon the top of the Mountains God gives Commission therefore to a Worme to smite this Gourd in the roote and so at once both Prelate and Pope doe wither by undermining This was Wickleife that had the double Honour of Learning in Humane and Divine Mysteries the latter of which had for many yeares passed obscurely as it were in a twilight amongst the meaner sort who had no Indowments to hold it forth amongst the throng of learned or great men of the World And though the newes thereof did sound much of Holynesse and Devotion Theames unmeet to be propounded to an Age scarce Civillized Yet because divers of them were more immediately reflecting upon the Policy of the Church wherein all the greater sort of the Churchmen were much concerned but the Pope above all the rest the accesse of all the matter was made thereby more easie to the Consideration of the great Lords and Princes in the Kingdome who out of principles of State were more deeply ingaged against the Pope then others of their ranke formerly had been Duke John of Gant led the way in this Act and had a party amongst the Nobility that had never red the Canon Law These held forth Wickleife and his Learning to the World and Edward the Third himself savoured it well enough but in his old Age desiring his ease was contented to looke on whiles his Lords Temporall and Spirituall played their Prize yet giving his plaudite rather to his Sonne then his Spirituall Fathers as if led by Principles of Nature rather then Religion This was the blossoming part of the Wickleifists but the principall strength was from beneath where the roots spread and fastned exceedingly especially in the South and Eastern parts of this Kingdome To tell of the Vsurpations of the Clergy the Idolatry of their costly Worship the vanity of their Curses c. was exceeding welcome newes to an oppressed multitude especially where these things were rightly understood The Issue soon manifested it selfe to the World no Parliament passed without reflections at Prelates Rome or some such thing and not onely the persons and practices of these men but even their Lawes and Canons were begun to be had in contempt and their missives sleighted And thus these men pretending Patronage both from Right drawn from Heaven and derived from men faile in their Evidence unlesse the people doe still beleive more then they are able to understand No marvell if Rome be now rouzed and that sort of men that formerly were Wolves in Sheeps clothing become now red and fiery Dragons taking up a new course of Establishing their Power by Persecution This was a way of Power indeed but it s a touchy thing to have to doe with fire least it gets too high It is therefore holden a point of discretion by the Prelates not to meddle with the Lords or the Common People the former were too great the later too many the one sort would not heare the other would not understand The Teachers therefore being the Velites at them they give fire Wickleife their Leader comes on bravely and notwithstanding they all made at him he routes them and in despite of them all comes off fairely and dies in his bed by the course of Nature Then an Ordinance is levelled at the rest of the Teachers This was made of an old Canon the nature whereof was to this purpose That upon complaint of the Bishop the Kings Writt shall be granted to apprehend Preachers of Heresies Errours and matters of Slander tending to Discord and Discention betweene the States of this Realme with their Factors and Abbettors and to imprison them till they be acquitted according to the Law of the Church This Law for such it yet appears gives occasion to consider of these particulers Viz. The Crime the Delinquents the manner of Inquisition and the penalty For the first not to trouble my way with Debate about the right of liberty of Preaching the matter in Fact was that men did publiquely Preach without Authority matters of Theology tending as it s said to sow discord and dissention so as they are under consideration censure of the Church-Men and Canon Law in one regard and of the Lawes of the Kingdome and Civill Magistrate as disturbers of the Peace on the other side and thus the Subjects liberty is cast into a mysterious cloudy and doubtfull posture by matters of Opinion Secondly the Persons Delinquent are
would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that matter of the Scedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Scedule in their own proceedings all which tended to inforce the King to govern according to their Councells and otherwise then suited with his good pleasure By force they removed Gaveston from the Kings presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World Last of all I shall make use of one or two Concessions which hath passed the Reporters own Penne in this discourse of his for the maintaining that the Legiance of an English man is neither Naturall nor Absolute nor Indefinite nor due to the Naturall Capacity but qualified according unto Rules The first is this English men doe owe to their Kings Legiance according to the Lawes therefore is it not Naturall or Absolute or Indefinite The inference is necessary for the later is boundlesse and naturall the former is limited and by civill constitution If any branch therefore of English Legiance be bounded by Lawes then the Legiance of an English man is circumscribed and not Absolute or Naturall The major Proposition is granted by the Reporter who saith that the Municipall Lawes of the Kingdome hath prescribed the order and form of Legall Legiance fol. 5. b. And therefore if by the Common Law the Service of the Kings Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the Kings Subject to an Absolute and Indefinite Service Or if the Statute-Lawes have settled a Rule according to which each Subject ought to goe to Warre in the Kings Service beyond the Sea as the Reporter granteth fol. 7. 8. Then cannot the Legiance be absolute to binde the Subject to goe to War according to the Kings own pleasure Secondly an English Kings Protection of his Subjects is not Naturall Absolute Indefinite nor Originally extendeth unto them in their Naturall Capacity therefore is not the Legiance of an English Subject to his King Naturall Absolute Indefinite nor Originally extendeth to the King in his Naturall Capacity The dependance of these two resteth upon the Reporters owne words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection drawes with it Subjection and Subjection drawes with it Protection so as they are Relata and doe prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shewes why this Bond between King and Subject is called Legiance because there is a reciprocall and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in Protection But the King is not Naturally bound to protect the People because this Bond begins not at his Birth but when the Crown settles upon him Thirdly this Protection is not absolute because the King must maintaine the Lawes fol. 5. a. and the Lawes doe not Protect absolutely any man that is a breaker of the Lawes Fourthly this Protection is not Indefinite because it can extend no further then his Power and his Power no further then his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly the Kings Protection extendeth not Originally to the Naturall Capacity but to the Politique Capacity therefore till a Forrainer commeth within the Kings Legiance he commeth not within his Protection And the usuall words of a Writ of Protection shewes that the party Protected must be in Obsequio nostro fol. 8. a. The summe then is that as Protection of an English King so neither is Legiance or Subjection of an English man Naturall Absolute Indefinite or terminated in the Naturall Capacity of the King And to make a full Period to the Point and make the same more cleare I shall instance in one President that these times of Edward the Third produced The former English Kings had Title to many Teritories in France but Edward the Third had Title to all the Kingdome And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that successe that in a little time he gaines the highest Seate therein and so brought much Honour to the English Nation and more then stood with the safety of the Kingdome For in the union of two Kingdoms its dangerous for the smaller least it be swallowed up by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the People of England should not be subject to the King or his Heires as Kings of France which manifestly importeth that an English King may put himselfe in such a Posture in which Legiance is not due to him and that this Posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule as an English King which if so I suppose this notion of Naturall Absolute and Indefinite Legiance to the King in his Naturall Capacity is out of this Kingdome if not out of the World and then the foot of the whole Account will be that the Legiance of an English man is Originally according to the Lawes The summe of all being comprehended in the joynt safety of the People of England CAHP. IX Of Courts for Causes criminall with their Lawes THe great growth of Courts founded upon Prerogative derogated much in these times from the ancient Courts that formerly had attained the Soveraignty over the People and in the hearts of them all This was a hard Lesson for them to learn but especially of the Kings Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oier and Terminer Goale delivery and Juâ—tices of Peace Those of Oier and Terminer were now grown very common but lesse esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalfe of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full summe made the matter so foul as it became a common greivance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goale delivery likewise grew more mean and ordinary The chief sort of men in