in force although many of them had their original from the Saxons One God must be worshipped and one faith of Christ maintained throughout the whole Kingdom This is found amongst the Laws of the King William published by Mr. Selden and was for substance in the Saxons time saving that we find it not annexed to the Crown summarily until now so as by this Law Heresie and Idolatry became Crown-pleas And the like may be collected concerning Blasphemy concerning which it is said as of the Servant's killing his Lord that it is impardonable nor could any man offend herein but it endangered his whole estate The trial of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and possibly in the County-court of the Torne where the Bishop was present Jura divina edocere Peter-pence Ciricksceat and Tythes must be duly paid These are all Saxon Laws united to the cognizance of the Crown as formerly hath been shewed Only the first William especially provided that in case any man worth Thirty pence in Chattels did pay four pence for his part it should be sufficient both for himself and his Retinue whether Servants or Retainers and defaults in payment of these duties were finable to the King. Invasion upon the right of Sanctuary fined This I note not so much in relation to any such Law amongst the Saxons as to the future custom which now began to alter according to the increase or wane of the Moon I do not find this misdemeanour to be formerly so much taken to heart by the Crown nor possibly would it have been at this time but that the King must protect the Church if he mean to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their own right by themselves Amongst all the rest of Church-rights this one especially is confirmed viz. That any Delinquent shall have liberty of Sanctuary to enjoy both Life and Member notwithstanding any Law to the contrary This priviledge was claimed by the Canons but it must be granted by the Temporal power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such privileges in particular yet could not such Grants create such immunities contrary unto or notwithstanding any publick Law of the Kingdom and therefore the Monasteries had their foundations confirmed by Parliament or general assembly of wise men if the first foundation was not laid thereon Working upon the Feast-days punished by Fine Before this time no days for Solemn Worship of God were acknowledged by the Law of the Kingdom but the Lord's days By this all days celebrated or instituted by the Church for that purpose are defended by the civil power and breach of the holy observation of these days made enquirable and punished amongst other pleas of the Crown Breach of the Peace Bloodshed and Manslaughter punished by Fine This was the ancient Law of the Saxons and was continued without alteration till about Alfred's time whose zeal against blood caused Murther to be punished with death but the Danes bringing in a moderation if it may rightly be so called are now seconded by their kindred the Normans who will not admit of punishment by death partly because being a warlike people bloodshed might seem to rank itself under the Regiment of valour and partly because they owed much to that Title for the possession of all that they had gotten in England And to prevent scandal entring upon the rear opinion stept in that a miserable life was more penal than death and therefore in crimes of the deepest die they came to fine and loss of Member and which course prevailed most either to stop or enlarge the course of that sin was left to the disposition of such as intended to make trial But in matters of less malignancy the purss rather smarted than the body wherein they proceeded so far as to punishment of death by violence yet was not the fine to be measured by the judgment of the mercy or rigour of any person but only of the Law itself which set down in certainty both the nature and quantity of the fine and left that memorial upon record of a good mind at least to an equitable and just Government In all these cases of breach of peace the King's Court becomes possessed of the right of cognizance and the peace is now called the King's peace not so much because that it is left only to his providential care to maintain as because the fines for most of those crimes pertained to the King for otherwise there is a sort of crimes that are contra pacem vicecomitis as will be more cleared hereafter I shall conclude this subject with these three Observations First that the Laws in those ancient times of the Normans were so general as they then made no difference between places or persons but whether the peace was broken upon holy or common ground or upon a Lay-man or one in orders the Lay-power seized upon all The second is the care they had for apprehending of the offenders in this kind If the party slain were a Norman or Frenchman the Lord of the Manslayer was charged to have him forthcoming within a certain time or pay the Kings Fine of 46 Marks so long as he had wherewith to satisfie and for what remained the whole Hundred was charged But if the party slain were of any other people the Hundred was immediately charged with the Manslayer and must bring him to answer within a certain time or pay the Kings fine The third and last is the care they had to prevent breach of peace for the future first in setling of night-watches by all Cities Burroughs Castles and Hundreds in such manner as the Sheriff or chief Officers by Common-council shall advise for the best safety of the Kingdom Secondly in forbidding entertainment of unknown persons above three days without surety for their good abearance or becoming their pledge for the publick safety nor to let any persons pass away without testimony under the Ministers and Neighbours hand of their good carriage A Man committing Adultery with a Married Woman shall forfeit to his Lord the price of his life This made the crime enquirable at the common-Law as an offence contra pacem Domini but afterward it was sinable to the King and enquirable amongst the pleas of the Crown by the Law of Henry the first Force upon a Woman to the intent to Ravish her is finable but if a Rape be committed it shall be punished with loss of Member The crime and offences against this Commandment were always punished in the Temporal Courts by Fine at the least and are still in the Normans time prosecuted in the same way notwithstanding the growing authority of
apparent into the Case making the same Treason So as it implieth that English Allegiance tieth the Subject not onely to the safety of the Person of the King but also to the Queen and Heir apparent otherwise the offence is made and declared Treason against the King. Secondly The Election of the Object is to be considered for whether the one or other Statute be observed it will appear that although the King was the next object expressed yet a further was intended and that the Crime is not intended in regard of his natural Capacity as a man but of his politick Capacity and in relation to the Common good of the Nation And this is evident not onely from the several Prefaces of the Laws but also from the manner of Election whereby the Title of Heir apparent is taken up and not the Eldest Son or Daughter or these and not the other Children all which are equally dearly beloved in natural regard Thirdly Though at the Common Law Treason be properly a Crime against Allegiance yet as in Cases of Felony crimes may be by the Statute made as Treason which at the Common Law are not against the Legiance of an English man for this remaineth ever one and the same but one and the same fact may be made Treason and unmade by the Statute-law as befel this Law of Henry the Eighth by a Law within twenty years after like as also in former times one and the same fact hath many times received the like measure Other Treasons besides these already mentioned were by Henry the Eighth created as Marriage with any of the Kings Sisters Daughters or Aunts of the Father's side or the Daughters of his Brethren or Sisters without consent first had of the King Counterfeiting currant Money not of the Kings Coynage was likewise made Treason by Henry the Seventh who was well seen in that Mystery or Money-trade and the like also became of Counterfeitures of the Kings Privy Signet and Sign Manual And lastly that horrid trick of Poysoning was reduced to this Category rather that the Penalty might be more terrible in the Death which was by boyling than for any Tincture in the Nature of the Crime or in any Forfeiture of Estate The policy of these times thus irritated against Treason had proved very irregular if the same had not been as rigid in cases of Felony Divers new ones of that kind are also dubbed amongst which Conjuration or Witchcraft comes first an old Felony in the Saxons time but since had gotten its Clergie now well-nigh for the space of Five hundred years and they it so as it never walked abroad amongst the Laity but under the favour of the Cloistered people nor ever came before the Civil Power till now Henry the Eighth brought it forth into its own ancient and proper Regiment Other crimes being those of the season are made into the same degree Such as were taking of Women into Captivity unlawful Huntings with disguises malicious breaking of the Dikes and Banks in Marshland Servants embezzelling their Masters Goods to the value of Forty shillings or upward which besides that of Heresie whereof formerly though of a new stamp yet of so good a constitution that they remain unto this day under the same brand But let the Laws be never so severe if they have not free liberty to walk at large they are soon ghostless and therefore these two Kings especally the later gained that Honour above their Predecessors that they gave the Law a free and full scope over all persons but themselves and their Assignees and in all places First concerning places every one knows the Notion but few considered the extent of Sanctuary ground in England that could sanctifie any crime or criminal person in such manner that though the eye of Justice could see yet the hand of Justice could never reach them till Henry the Eighth plundred them of all their Sanctity and made all places common So as no Treason could hide it self but where the Act of Parliament did appoint and turned their names from Sanctuaries to priviledged places The sanctity of the person was yet more mischievous and hard to be reformed it had been often attempted before these times with little success Henry the Seventh gained some ground herein beyond his Ancestors the Delinquent might have his Clergie once but not the second time though he fled to the horns of the Altar and was ever after known by a brand in the hand Thus far did Henry the Seventh go and would have done more even as far as unto those in Holy Orders But Henry the Eighth coming on in point of Treason made all persons common without respect of their Orders or Profession Death makes an equal end of all In cases of Murther Robbery Burning of Houses Felonies done in holy Ground High-way or Dwelling-house refusal of Trial peremptory challenge of above twenty of the Pannel Servants embezzelling their Masters Goods in value Forty shillings or upwards in all these Cases no Clergie could be allowed but to persons in Holy Orders and those also to be perpetually imprisoned in the Ordinaries Prison And yet this exception held not long in force but these men also were equally wrapped up in the same course to have their Clergie and indure the brand even as other men Two difficulties yet remain which hindred the execution of the Laws against Treason One concerning the Place the other the Person The Place many times of the plotting and beginning of the Treason befalleth to be without the walk of the Kings Writ in which Case by the Common Law it cannot be inquired or tried or it may be that the men of the place be generally disaffected and then no hope of finding out the matter In such Cases therefore it is provided that be the crime wheresoever the Delinquent will it shall nevertheless be inquired and tried where the King will. The Person of the Delinquent also many times changed its condition it might be sober at the time of the Delinquency and afterwards upon discovery prove Lunatick and thereby avoid the Trial this whether in jest or earnest by a Statute is made all one and it is ordained That in case the Fact be confessed by the Delinquent before the Lords of the Council at such time as the party accused was of sound mind and the same be attested under the hands of four of those Lords the same shall be a good ground to proceed to inquisition before Commissioners and the same being found to try the Delinquent without answer or appearance saving unto Barons their Trial by their Peers And thus however in their Fits the Will of the Persons of these Kings was too hardy for the Kings to manage according to rule yet the Law still in Title kept the Saddle held the Reins and remaineth the chief Arbitrator unto every man. CHAP. XXXIV Of the general Government
gather Armies though for never so honourable employment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine years travel before they could attain the shore although it had been often within their view It may be the King found it advantageous for his Government to maintain an Army in the field under the colour of the Welsh War that he might more bow his Subjects to his own bent for during these Wars the King made many breathings and took time to look to the husbanding of his own Revenue as those Ordinances called Extenta manerii and Officium Coronatoris do witness and the Statute of Bigami But the people were not altogether yet tamed for the times being still in Wars and they occasioning much waste of Treasure put the King to the utmost pitch of good Husbandry and one degree beyond the same so as under colour of seizing his own he swept up also the Priviledges and Liberties of his Subjects some Authors reciting the complaints of the Church-men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another Combustion had not the meeting at Gloucester setled things for the present by referring the right of Franchises to debate in the Eyer and ordering reseizure of such Liberties into the Subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth Chapter of the Statute of Bigami Nevertheless however debonair the King seemed to be the sore between him and his Subjects was not fully cured nor did the Lords trust him further than needs must for whether they served in the Field or met at Council still they were armed and during this daring of each other were many profitable Laws made whilst neither party durst venture bloodshed in touching too nigh upon the Priviledges of each other principally because the affairs in Wales were but laid asleep and upon reviving might turn the ballance to either side The Wars awake again and therein are consumed nigh five years more of the King's Reign so as whatever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the Prerogative of the Crown at home Nor had he scarcely breathed himself and Army from the Welsh Wars but he found both France and Scotland his Enemies at once The King faced onely the first and fought the second which held him work the remainder of his days and at the same time also he arrayed both the Clergy and Laity at his own home as if Providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the World whether his Justice was spontaneous or by necessity for as yet he held the Grand Charter at parley and therefore was rather eyed than much trusted Albeit he was put upon confidence in the Subjects discretion for aid of him in his continual undertakings nor did they disclaim him herein however chargeable it was for all seem willing he should be employed any where so as not within the four Seas It is probable the King knew it and therefore having made a Voyage into France he changed the Scene of War but to the other side as it were of a River in hope his Lords would follow but it would not be This angred him and he them nor would his Clergy allow him any aid Papa inconsulto and therefore he outs them from his protection These and his irregular preparations by War by summons not onely of his Knights but all other that held Land worth 20 l. per annum and Taxes imposed by an arbitrary way increased Rancor into a kind of State-scoul little better than a Quarrel For appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the Grand Charter at the long run and allowed it as the common Law of the Kingdom and seconded the same with many succeeding confirmations in the twenty seven and twenty eighth years of his Reign as if he had utterly renounced all thought of a contrary way But the Statute in his 28th year had a sting in the tail that was as ill as his saving of ancient aids and prisals which was in the Statute of confirmation of the Charters though it were omitted in this Statute for the saving was of such a sence as time and occasion would move the King's heart to make it and thus this Statute became like a Hocus Pocus a thing to still the people for the present and serve the King's turn that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good success and the terrour of those that had stopped the broad way of his extravagant Prerogative and therefore looks big rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his Wars in Flanders All come and submit and as it were in so many words let the King know that all England is now tame and like to be ridden at his discretion And now there 's nothing in his way but the fatal execration which he feared not in relation to God's anger but rather to the exasperated Clergie and the dread of the Pope's direful Thunder-bolt To avoid this storm he procures a Dispensation from Rome to perjure and oppress without sin a trick that he learned of his Father and hid it within his breast till now about two years before his end he brings it forth to tell all the world that hitherto he had been just against his will. But having obtained his purpose he nevertheless misseth of his end for a new King of Scots our old good enemies by divine providence suddenly crossed his way before him and now it boots not to contend for arbitrary rule in England and lose the Crown of Scotland which he once thought he had sure he faces about therefore and having spoken fair to his people for Scotland he goes Thus if all were not in a Parenthesis the King intended a good period but God onely knows what his furthest reach would have been if he had returned for he was taken out of this world in Scotland and so left this his government somewhat like an imperfect sentence His Son Edward should have compleated it but that he wanted his Father's sence and had too much of his Grandfather's superbient humour that meeting
going out and nothing coming in he had a rule upon his private expences a good gloss upon the publick and a platform for the augmenting of the Treasure of the Kingdom as well for the benefit of the people as of the Crown In order to the first it is considerable that the Royal Family was great and numerous above all his Predecessors that besides the King and Queen who were of a gallant and accomplisht deportment they had a Son a Prince of as great renown as ever Prince had and he also a Family suitable to his generosity that they had other Children every one like their Father both for War and Peace and that for the maintenance of all these the expences must be in reason larger than formerly they were wont to be Nevertheless because purveyance for the King had already swelled so big that all other oppressions seemed to be swallowed up into that one the King to moderate the rigor thereof made nigh twenty Statutes first excluding all servants at wages and Horses and Dogs which were put to board with the Sheriffs then reducing the purveyance only to the Families of himself his Wife and Children then to the Families of himself the Queen and Prince and in the levy hereof some mens Estates were absolutely priviledged and some kind of Goods as Sheep before shearing and Trees about the dwelling house Nor is the setling of the manner less considerable It must be levyed by Authority in writing under the Seal and it must not be taken against the owners will or upon malice nor must be spared for reward the price must be the same with the true Market-price the measure according to the common measure stricked and the payment must be immediately if the price be under Twenty shillings if above it must be made in a quarter of a year and no man must charge more carriage than is necessary And thus was this wild Ivy of Purveyance that like some kinds of Plants spreads over all by rooting up and cutting down brought into some kind of fashion that if it did no good it might do the less hurt unto the people Secondly Although it be true that Edward the Third was a King of many Taxes above all his Predecessors yet cannot this be imputed as a blot to the honour of the Law or Liberty of the people for the King was not so unwise as either to desire it without evident cause or to spend it in secret or upon his own private interests nor so weak and irresolved as not to employ himself and his Souldiers to the utmost to bring to pass his pretentions nor so unhappy as to fail of the desirable issue of what he took in hand So as though the people parted with much money yet the Kingdom gained much honour and renown and becoming a terrour to their Neighbours enjoyed what they had in fuller security and so were no loosers by the bargain in the conclusion Secondly although they parted with much yet nothing to Prerogative but in a Parliamentary way and so it was not taken but given Thirdly though the Taxes were frequent yet but light for frequent light Taxes steal insensibly without regret and as they grow into matters of course so they meet with acceptance of course Two things made them of light account First they were not Taxes altogether of Money in kind but of Goods such as the Sheaf and Fleece and such-like things whereof the ownership is visible whereas many are supposed to have Money which have it not but must borrow it or sell their goods at an under-rate many times to accomplish it for the payment of their Taxes Secondly these Taxes are assessed by the Neighbourhood and not upon extremity of Survey by Commissioners who many times are subject to miscarry upon grounds of private Interest or for want of due information or by making more haste than good speed These Taxes likewise were reduced to the ancient rule according to the Statute of Westminster the first And thus did this King shew himself truly Royal in demanding his Taxes upon evident grounds of State levying them with a tender hand and employing them to their right end Thirdly that which digested all and bred good bloud was in that the people had quid pro quo by the advance of Trade wherein the King shewed himself the Cape-Merchant of the world Certainly mens parts in these times were of vast reach that could manage such Wars settle such a Government and lay such a foundation of a Treasury by Trade a thing necessary to this Island next unto its own being as may appear not only in regard of the Riches of this Nation but in regard of the Strength thereof and in regard of the maintenance of the Crown the two latter of which being no other than a natural effluence of the former it will be sufficient to touch the same in order to the thing in hand Now as touching that it is evident that the riches of any Nation are supported by the Conjuncture of three regards First That the natural Commodities of the Nation may be improved Secondly That the poorer sort of people be set a work Thirdly That the value of money be rightly balanced For as on the one part though the people be never so laborious if the natural Commodities of the Island be not improved by their labour the people can never grow much richer than barely for subsistence during their labour so neither can the improvement of the natural Commodity inrich the Kingdom so long as many mouths are fed upon the main stock and waste the same by idleness and prodigality Nor though both these should concur yet cannot the Kingdom be said truely to be rich unless by intercourse and Traffick there be an emptying out of the superfluity of such Commodities by way of Barter or otherwise for such Forein Commodities whereof this Nation slandeth in most need for supply of all occasions For God hath so attempered the whole Regiment of the earth in such manner that no one Nation under Heaven can well and comfortably subsist in and by it self but all must give and receive mutual Commodity from each other otherwise superfluity would make any Commodity though in it self never so precious vile and little conducible to the inriching of the Nation Now for the compassing of all these the Wise men of these times first took into their consideration the principal Commodities of this Kingdom and because they found them impounded in the Staple they set all at liberty to buy and sell the same as they pleased And thus began a Free Trade of Wool throughout the Realm and matter for employment by every man that would but this continued not long The people soon had Commodity enough for work and Kings liked too well of the restraining of that liberty in order to their own benefit and soon found out occasions to reconcile the reason of State with their own Interests and
sense of that grand Title of Supremacy of Jurisdiction Power Superiority Pre-eminence and Authority than by the common Vogue hath been made The Title of Supremacy was first formed in the behalf of Henry the Eighth's Claim in matters Ecclesiastical which by the Statute is explained under these words of power To visit correct repress redress Offences and Enormities This Power and no other did Queen Elizabeth claim witness the words of the Statute in her own time But in the framing of the Oath of Supremacy in her time not onely in Causes Ecclesiastical but Temporal which never came within the Statutes and publick Acts in Henry the Seventh's time are inserted and if any thing more was intended it must come under the word Things which also was inserted in the said Oath and yet if the words of the Statute of Queen Elizabeth formerly mentioned be credited the word Things ought to comprehend no more than the word Causes and then the power of Queen Elizabeth in the Commonwealth will be comprehended in these words of Supremacy to visit correct repress redress Offences and Enormities for the Supremacy in the Church and Commonwealth is the same in Measure and what more than this I cannot understand out of any publick Act of this Nation Now in regard Offences and Enormities are properly against Laws the power to visit and correct must also be regulated according to Laws either of War or Peace Nor do these five words Jurisdiction Power Superiority Pre-eminence and Authority contain any more Supremacy or other sence for two of them speak onely the Rank or Degree of the Queen in Government viz. Superiority and Pre-eminence belongeth onely to her and not to any other Foreign Power And two other words do note her Right and Title thereto by Power and Authority committed to her And the other word denotes the thing wherein she hath Superiority and Power viz. in Jurisdiction the nature of which word Vlpian speaking of the nature of a mixt Government explaineth thus Quando servata dictione juris judiciorum fit animadversio So as this Supreme Authority in Jurisdiction is no other than Supreme Power to visit correct redress Offences or determine matters in doubt by deputing fit persons to that end and purpose according to the Law and this is all the Supremacy that appeareth to me belonging to the Crown in these times CHAP. XXXVI Of the Power of the Parliament during these times WHen the Throne is full of a King and he is as full of opinion of his own sufficiency and power a Parliament is looked upon as an old fashion out of fashion and serves for little other than for present shift when Kings have run themselves over Head and Ears A Condition that those of that high degree are extremely subject unto but where the Crown is too heavy for the wearer by reason of infirmity the Parliament is looked upon as the chief Supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A Work that must be done with a curious touch and a clear hand or they must look for the like Censure to that of a King to a great Lord that crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the chief but ever under the correction and direction of the Common Council in matters of common concernment Two things declare the point the course of the Title of the Crown and the Order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the Rule of Inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royal bloud and many times to the right Heir to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their Birthright in their first entry into their Throne Of three and twenty Kings from the Saxons time four of the former had no Title by Inheritance the two Williams Henry the First and King Steven Two others viz. Henry the Second and Richard the first had right of Birth yet came in by Compact The Seventh which was King John had no Title but Election The Eighth viz. Henry the Third came in a Child and contrary to Compact between the Nobility and the French Lewis The Ninth and Tenth succeeded as by unquestionable Title of Descent yet the Nobles were pre-engaged The Eleventh which was Edward the Third in his entry eldest Son but not Heir for his Father was alive but his Successour was his Heir It is true there were other Children of Edward the Third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collateral line Their two Successours viz. Edward the Fourth and Edward the Fifth were of the Line yet Edward the Fourth came in by disseisin and Edward the Fifth by permission Richard the Third and Henry the Sevâ—nth were collateral to one another and to the right Bloud Henry the Eighth though when he was King might claim from his Mother yet came in as Heir to his Father And if Edward the Sixth was right Heir to the House of York by his Grandmother yet cannot the Crown be said to descend upon the two Sisters neither as Heirs to him nor Henry the Eighth nor to one another so long as the Statute of their Illegitimation remained which as touching Queen Mary was till three months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of Repeal as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament than to mention their blemishes in Government by doing and undoing She over-looked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his Thirty fifth year which to her was a meer purchase and was not ashamed to declare to all the world that she did have and hold thereby and that it was High Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to disinherit and disable any person who should pretend Right to the Crown in opposition to the
men of so high accomplishment And by this means Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these latter days 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 Laws and every one the publick good of the people No man's work is beneath no man 's above it the best honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English Supream Service above all and to the whole I now conclude wishing we may attain the happiness of our Forefathers the ancient Saxons Quilibet contentus sorte propria A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND THe more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this Second Part for some time but observing the ordinary humour still drawing off and passing a harsher Censure upon my intentions in my First Part than I expected I do proceed to fulfil my course that if Censure will be it may be upon better grounds when the whole matter is before Herein I shall once more mind that I meddle not with the Theological Right of Kings or other Powers but with the Civil Right in Fact now in hand And because some mens Pens of late have ranged into a denial of the Commons ancient Right in the Legislative power and others even to adnul the Right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet lìcet so making the breach much wider than at the beginning I shall intend my course against both As touching the Commons Right joyntly with the Lords it will be the main end of the whole but as touching the Commons Right in competition with the Lords I will first endeavour to remove out of the way what I find pulished in a late Tractate concerning that matter and so proceed upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judicial Power of the Parliament rested wholly in them Lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not known nor heard of till punier times than these This last will be granted viz. That their several Titles of Knights Citizens and Burgesses were not known in Parliament till of latter times Nevertheless it will be insisted upon that the Commons were then there The second will be granted but in part viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor whole The first is absolutely denied neither is the same proved by any one instance or pregnant ground in all that Book and therefore not clearly demonstrated by Histories and Records beyond contradiction as the Title-page of that Book doth hold forth to the World. First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab Authoritate Negativa which is no Argument in humane testimony at all Secondly The greatest number of instances in that Book are by him supposed to concern Parliaments or General Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodical Conventions for Church-matters whereunto the poor Commons he well knoweth might not come unless in danger of the Canons dint or if they did yet had they no other work there than to hear learn and receive Laws from the Ecclesiasticks And the Lords themselves though present yet under no other Notion were they than as Counsel to the King whom they could not cast out of their Council till after-ages though they often endeavoured it Thirdly The Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the aid of the Parliament And it is no less true that Kings with the Lords did in their several Ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in War to be Lords in Peace but hard to lay down that power at the Foot of Justice which they had usurped in the rude times of the Sword when men labour for Life rather than Liberty and no less difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrymen till Peace by continuance had reduced them to a little more sobriety Nor doth it seem irrational that private differences between Party and Party should be determined in a more private way than to trouble the whole Representative of the Kingdom with matters of so mean concernment If then those Councils mentioned by the Author which concern the King's Grants and Infeodations and matters of Judicature be taken from the rest of the Precedents brought by him to maintain the thing aimed at I suppose scarce one Stone will be left for a Foundation to such a glorying Structure as is pretended in the Title-page of that Book And yet I deny not but where such occasions have befaln the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergie onely and they might think it sufficient for them to honour their Writings with the great Titles of men of Dignity in the Church and Commonwealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appear they were in some of the particular instances ensuing to which we come now in a more punctual consideration The first of these by his own words appear to be a Church-mote or Synod it was in the year 673 called by the Archbishop who had no more power to summon a Parliament than the Author himself hath And the several Conclusions made therein do all shew that the People had no work there as may appear in the several Relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he makes much use of and therefore I shall be bold to make the best use of him that I can likewise in vindicating the truth of the point in hand For whatever this Council was it is the less material seeing the same Author recites a Precedent of Aethelbert within six years after Austin's entry into this Island which was long before this Council which bringeth on the Van of all the rest of
the Canon Robbery is finable The different Law between the Saxons Angles and Danes now by the Normans is setled in the more merciful way and in case the delinquent made flight the pledge satisfied the Law for him But in the latter times of Henry the first the Law was again reduced to the punishment of this crime by death and so hath continued There shall be true weights and measures throughout the Kingdom and those shall be sealed And this was the constant Saxon Law. Perjury to be punished by fine and as formerly still inquirable amongst the Crown-pleas CHAP. LI. The like of Laws that concern common interest of Goods IF Cattle be taken by Distress the party that will replevy them shall pay for the return of the Cattle and give security to bring the Distress into the Court if with within a year and a day it be demanded This Law I take to be intended where the Cattle are taken damage feasant because nothing shall release the Distress in other cases but obedience to the Summons No Distress ad comparendum shall be taken but after three several Summons and so many defaults made and in such case Distress shall issue by especial order from the County-court I noted this partly to shew the difference of the Normans from the Saxons in the delay of execution of Justice by so much mean process and partly to shew the difference between the Norman times and these days wherein mens Cattle lie open to the distress of every oppressing or extorting Bayliff or unknown person and no Summons made at all whereby many poor mens Estates are either undone or they must submit to the unjust demands of their adversary No manner of Goods of above four pence in value shall be bought unless in the presence of four Witnesses of the Town And the vendor shall satisfie out of his own Estate if the sale be not effectual and in case the vendor have no warrant for such Goods by him sold. No living Cattle shall be sold but onely in Cities and before three Witnesses nor shall any thing forbidden be sold without Warranty No Fairs or Markets shall be holden but onely in Cities Boroughs Wall'd-Towns and Castles These Laws concerning sales and Markets were ancient Saxon Laws and tend all to the avoiding of cheating men of their Cattle by surreptitious sale of them made by such as had no right Goods found shall be published by the Finder to the Neighbourhood and if any makes claim and proof of them to be his he shall have them giving security to bring them into the Court in case any other shall within a year and a day make his claim thereto The Children of persons intestete shall equally divide the Heritage This is in terminis the Saxon Law and therefore concerning it I shall refer to the same formerly recited onely I shall add hereto the Law of Henry the first which may serve as an explanation of the former Any Freeman may devise his Chattels by will and if he die intestate his Wife Children Parents or next kin shall divide the same for his Souls good The first branch whereof was ancient and doubtless in continual use but the iniquity of the Norman rude times was such that the Lords under surmise of arrears or relief would seize all the personal estate after the Tenant's death and so the right of last Wills was swallowed up but this restoreth the power of last Wills into it's place anâ— in case the party died intestate preserveth a kind of nature of descent although they be more personal Nor doth that last clause of the Souls good disanul the same although the words may seem to carry away the benefit to some other hand For the whole matter is left to the discretion of such as are next to the Intestate CHAP. LII Of Laws that concern common interest of Lands THe Laws that concern Lands and peculiarly belonging to the Normans are such as concern principally the tenure of Lands which if duly considered although savoured somewhat of the King yet little of the Conquerour For generally it must be granted that Tenures long before and after this time were as the services ordered according to the Will of the giver in which as the King had the greatest share and he the most publick person of all so were his Donations ordered chiefly to advance the publick service and in this regard the Tenure by Knight service might more principally challenge the King's regard than the regard of all the great men besides But this was not the sore yea rather it was the beauty and strength of the Kingdom and for which the King deserved an honourable name above most of his progenitors who had not so much Land to dispose of as he had and therefore could not advance that service in any proportion equal unto him The sore that caused so many sighs was the incumbrances raised upon this most noble and free service which through the evil of times by this means became the most burdensome and the onely loathed and abhorred service of all the rest I say through the evil of times for it cannot lodge in my thoughts but that in the Norman times the incumbrances were nothing so great as of latter Ages and that much hath been imputed to the Laws of the Conquerour which they never deserved as may appear in these particulars which the Laws of Henry the First have preserved in memory Tenant of the King or other Lord dying his Heir shall pay no other relief than what by Law is due That which by Law is due is set down in the Laws of William the Conquerour The Relief of an Earl. 8 Horses sadled and bridled 4 Helmets 4 Coats of Mail. 4. Shields 4 Spears 4 Swords 4 Chasers 1 Palfray bridled and sadled The Relief of a Baron 4 Horses with Saddles and Bridles 2 Helmets 2 Coats of Mail. 2 Shields 2 Spears 2 Swords 2 Chasers 1 Palfray bridled and sadled The Relief of a Vovasor to his Lord. His best Horse His Helmet His Coat of Mail. His Shield His Spear His Sword. Or if he had no Arms then he was to pay s. 100 The Relief of the Country-man is the best Beast that is in his possession and of him that farmeth his Lands a years rent These are the Reliefs due by Law and now setled in Goods or Arms but afterwards turned into Money and it is likely that the ill customs in the former times did extort both Money and Arms or such sums of Money as they pleased and by the very words of the Law it seems they had brought it to an Arbitrary power to take what they could get and yet all against Law. The Kings Tenant shall advise with the King in marriage of his Daughter Sister Niece or Kinswoman and his Widow in like manner The sence hereof in short is that these might
legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia and therefore no man ought to be urged upon such difficulties unless by the express Law of the Land. The old way of Trial was first to bring in a Complaint and Witnesses ready to maintain the same and therefore both Appeals and Actions then used to conclude their pleas with the names of Witnesses subjoyned which at this day is implied in those general words in their conclusions Et inde producit sectam suam that is he brings his sect or suit or such as do follow or affirm his complaint as another part also is implied in those words Et hoc paratus est verificare For if the Plaintiffs sect or suit of Witnesses did not fully prove the matter in fact the Defendant's Averment was made good by his own Oath and the Oaths of Twelve men and so the Trial was concluded No Free-man shall be imprisoned or disseised of his Freehold or Liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peers Nor shall Justice be sold delayed or denied This is a comprehensive Law and made up of many Saxon Laws or rather an enforcement of all Laws and a remedy against oppression past present and to come And concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the Law and his liberty likewise so as he shall be shut into no place by Imprisonment nor out of any place by Banishment but shall have liberty of ingress and egress His Estate both real and personal shall also be under the protection of the Law and the Law also shall be free neither denied nor delayed I think it needless to shew how this was no new Law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the sum of all the foregoing discourse tendeth thereto Merchants shall have free and safe passage and trade without unjust Taxes as by ancient custome they ought In time of War such as are of the Enemies Countries shall be secured till it appear how the English Merchants are used in their Countries That this was an ancient Law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon Laws So as it appeareth that not onely the English Free-men and Natives had their liberties asserted by the Law but also Forreiners if Merchants had the like liberties for their persons and goods concerning Trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the Law as the Free-men had And unto this Law the Charter of King John added this ensuing It shall be lawful for every Freeman to pass freely to and from this Kingdom saving Fealty to the King unless in time of War and then also for a short space as may be for the common good excepting Prisoners Outlaws and those Country-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this Law of free passage out of the Kingdom was not anciently fundamental but onely grounded upon reason of State although the Freemen have liberty of free passage within the Kingdom according to that original Law Sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the Third as was also another Law concerning the Jews which because it left an influence behind it after the Jews were extinct in this Nation and which continueth even unto this day I shall insert it in this short sum After death of the Jew's debtor no usury shall be paid during the minority of the Heir though the debt shall come into the King's hand And the debt shall be paid saving to the Wife her Dower and maintenance for the Children according to the quantity of the Debtors Land and saving the Lord's service and in like manner of debts to others The whole doctrine of Vsury fell under the Title of Jews for it seemeth it was their Trade and their proper Trade hitherto It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times but by the Confessor's Law it was made penal to Christians to the forfeiture of Estate and Banishment and therefore the Jews and all their substance were holden to be in nature of the King Villains as touching their Estate for they could get nothing but was at his mercy And Kings did suffer them to continue this Trade for their own benefit yet they did regulate it as touching Infants as by this Law of King John and the Statute at Merton doth appear But Henry the Third did not put it into his Charter as I think because it was no liberty of the Subjects but rather a prejudice thereto and therefore Edward the First wholly took it away by a Statute made in his time and thereby abolished the Jews Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly In all alienations of Lands sufficient shall be left for the Lords distress Submitting to the judgement of the learned I conceive that as well in the Saxon times as until this Law any Tenant might alien onely part of his Lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord Paramount other than was formerly due to him without the Lord's consent and for the same reason could they not alien the whole Tenancy to bind the Lord without his express license saving the opinion in the book of Assizes because no Tenant could be enforced upon any Lord lest he might be his Enemy Nevertheless it seemeth that de facto Tenants did usually alien their whole Tenancy and although they could not thereby bar the Lord's right yet because the Lord could not in such cases have the distress of his own Tenant this Law saved so much from alienation as might serve for security of the Lord's distress But Tenants were not thus satisfied the Lords would not part with their Tenants although the Tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all saving to the Lords their services formerly due and thus the Lords were necessitated to grant Licenses of alienation to such as the Tenants could provide to buy their Lands Nor was this so prejudicial to the Lords in those days when the publick quiet was setled as it would have been in former times of War whenas the Lord's right was maintained more by might and the aid of his Tenants than by Law which then was of little power The 35th Chapter I have formerly mentioned in the Chapter concerning
Legiance of the Subject This is the strength as nigh as I can collect of that which is set down as a sixth reason but I make it the fourth because the third as I conceive is but an illustration of the second and the fifth is upon a supposal of a Fides ficta whereas that Faith of an English Subject which is according to Law is the truer of the twain But to the substance of this fourth reason If the first be granted yet the Reporter cannot attain his conclusion for the King may in his Natural Capacity have right to the Crown by Inheritance and yet not right in the Legiance of his Subjects otherwise than in the right of the Crown As in the case of Lord and Tenant the Lord may inherit the Lordship in his Natural Capacity but the service is due to him as Lord and not as by Inheritance in the service in the abstract And though it be granted that the Legiance to a King is of a higher strain than that of a Tenant to his Lord fol. 4. b. 5. a. yet doth the Reporter bring nothing to light to prove them to be of a different Nature in this regard The fifth and last reason that cometh to consideration is from a Testimony of the Parliament for it is said That this damnable Tenet of Legiance to the King in his Politick Capacity is condemned by two Parliaments But in truth I can find but one under that Title that mentioneth this Opinion and that is called Exilium Hugonis which is sum is nothing else but Articles containing an enumeration of the particular offences of the two Spencers against the State and the Sentence thereupon The offences are For compassing to draw the King by Rigour to Govern according to their Wills for withdrawing him from hearkning to the advice of his Lords for hindring of Justice and Oppression and as a means hereunto they caused a Bill or Schedule to be published containing That Homage and Legiance is due to the King rather in relation to the Crown than absolutely to his Person because no Legiance is due to him before the Crown be vested upon him That if the King do not Govern according to Law the Lieges in such case are bound by their Oath to the Crown to remove him either by Law or Rigour This is the substance of the Charge and upon this exhibited in the Lords House the Lords super totam materiam banish them before their Case is heard or themselves had made many appearance thereto So as to the matter of this Schedule which contains an Opinion suitable to the point in hand with some additional aggravations the Parliament determineth nothing at all but as to the publishing of the same to the intent to gather a party whereby they did get power to act other enormities mentioned in the Charge And in relation to those enormities the Lords proceeded to sentence of Banishment all which was done in the presence of the King and by his disconsent as may appear by his discontent thereat as all Historians of those Affairs witness And it is not probable that the King would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that manner of the Schedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Schedule in their own proceedings all which tended to enforce the King to govern according to their Counsels and otherwise than suited with his good pleasure By force they removed Gaveston from the King's 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 Reporter's own Pen in this discourse of his for the maintaining that the Legiance of an Englishman is Neither Natural nor Absolute nor Indefinite nor due to the Natural Capacity but qualified according unto Rules The first is this Englishmen do owe to their Kings Legiance according to their Laws therefore it is not Natural or Absolute or Indefinite The inference is necessary for the latter is boundless and Natural the former is limited and by civil Constitution If any breach therefore of English Legiance be bounded by Law then the Legiance of an English man is circumscribed and not Absolute or Natural The major proposition is granted by the Reporter who saith that the Municipal Laws of the Kingdom have prescribed the order and form of Legal Legiance fol. 5. b. And therefore if by the Common Law the Service of the King's Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the King 's Subject to an Absolute and Indefinite Service Or if the Statute-Laws have setled a Rule according to which each Subject ought to go to War in the King's service beyond the Sea as the Reporter granteth fol. 7. 8. then cannot the Legiance be absolute to bind the Subject to go to War according to the Kings own pleasure Secondly An English King's protection of his Subjects is not Natural Absolute Indefinite nor Originally extendeth unto them in their Natural Capacity therefore is not the Legiance of an English Subject to his King Natural Absolute Indefinite nor Originally extendeth to the King in his Natural Capacity The dependence of these two resteth upon the Reporters own words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection draws with it Subjection and Subjection draws with it Protection so as they are Relata and do prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shews why this Bond between King and Subject is called Legiance because there is a reciprocal 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 maintain the Laws fol. 5. a. and the Laws do not protect absolutely any man that is a breaker of the Laws Fourthly This protection is not Indefinite because it can extend no further than his power and his power no further than his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly The King's protection extendeth not originally to the Natural Capacity but to the politick Capacity therefore till a Foraigner cometh within the King's Legiance he cometh not within his protection And the usual words of a Writ of Protection shews that the party protected must be in Obsequio nostro fol. 8. a. The sum then is that as protection of an English King so neither is Legiance or Subjection of an Englishman Natural Absolute
And thus the Free-men yielded up their liberty of Election to the Free-holders possibly not knowing what they did nevertheless the Parliament well knew what they did this change was no less good than great For first These times were no times for any great measure of Civility The Preface of the Statute shews That the meanest held himself as good a man as the greatest in the Country and this tended to Parties Tumults and Bloudshed Secondly Where the Multitude prevail the meaner sort are upon the upper hand and these generally ignorant cannot judge of persons nor times but being for the most part led by Faction or Affection rather than by right Understanding make their Elections and thereby the general Council of this Nation less generous and noble Thirdly There is no less equity in the change than policy For what can be more reasonable than that those men onely should have their Votes in Election of the Common-Council of the Kindom whose Estates are chargeable with the publick Taxes and Assessments and with the Wages of those persons that are chosen for the publick Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficial to the Free-men of England although perchance they considered not thereof and this will more clearly appear in the consideration of these three particulars First It abated the power of the Lords and great Men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly It rendred the Body of the People more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publick regards and under a kind of Ambition to aspire unto the degree of a Free-holder that they may be somewhat in the Commonwealth And thus leaving the meanest rank sifted to the very bran they become less considerable and more subject to the Coercive power whilst in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no less careful to maintain correspondency with the Laws than he was industrious in the attaining of his degree Thirdly But this means now the Law makes a separation of the inferiour Clergie and Cloistered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead persons in Law were nevertheless Free-men in Fact and lost not the liberty of their Birth-right by entring into Religion to become thereby either Bond or no Free Members of the people of England Lastly As a binding Plaister above the rest First a Negative Law is made that the persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the County which tacitly implies that it was too common to advance those of the meaner sort Whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudeness in account or it may be the Yeomanry grew now to feel their strength and meant not to be further Underlings to the great Men than they are to their Feathers to wear them no longer than they will make them brave Secondly the person thus agreed upon his Entertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And Lastly their persons are put under the protection of the Law in an especial manner for as their work is full of reflection so formerly they had met with many sad influences for their labour And therefore a penal Law is made against force to be made upon the persons of those Workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of Confusions yet a foundation was laid of a more uniform Government in future times than England hitherto had seen CHAP. XV. Of the Custos or Protector Regni KIngs though they have vast Dimensions yet are not infinite nor greater than the bounds of one Kingdom wherein if present they are in all places present if otherwise they are like the Sun gone down and must rule by reflexion as the Moon in the night In a mixt Commonwealth they are integral Members and therefore regularly must act Per deputatum when their persons are absent in another Legialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vice-gerents in their absence giving them several Titles and several Powers according as the necessity of Affairs required Sometimes they are called Lord Warden or Lord Keeper of the Kingdom and have therewith the gegeral power of a King as it was with John Warren Earl of Surrey appointed thereunto by Edward the First who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Foreigner had the like power given him by Edward the Second over England to the reproach of the English Nobility which also they revenged afterward Sometimes these Vice-gerents are called Lieutenants which seemeth to confer onely the King's power in the Militia as a Lieutenant general in an Army And thus Richard the Second made Edmund Duke of York his Lieutenant of the Kingdom of England to oppose the entry of the Duke of Hertford afterwards called Henry the Fourth into England during the King's absence in Ireland And in the mean while the other part of the Royalty which concerned the Revenues of the Crown was betrusted to the Earl of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say The King put his Kingdom to farm But more ordinarily the Kings power was delegated unto one under both the Titles of Lord Guardian of the Kingdom and Lieutenant within the same such was the Title of Henry Lacy Earl of Lincoln and of Gilbert de Clare Earl of Gloucester and of Audomar de Valentia Earl of Pembrooke all of them at several times so constituted by Edward the Second as by the Patent-Rolls appeareth So likewise did Edward the Third make his Brother John of Eltham twice and the Black Prince thrice and Lionel Duke of Clarence and his Brother Thomas each of them once in the several passages of Edward the Third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his Reign concerning which see the Patent-Rolls of those years And Henry the Fifth gave likewise the same Title and Authority to the Duke of Bedford upon the King's Voyage into France and afterward that Duke being sent over to second the King
from without and in all good ends from above And therefore as a Seal to all the rest it was wisely done by the Parliament to draw the mindes of the Privy Council together and to present them joyntly before God by an Oath obliging themselves to a solemn and constant observance of their instructions and to perievere therein For the unchangeable God can onely stamp a lasting Image upon the mind and bind the same that is so subject to change to an unchangeable Law whereby the people may be made as happy for continuance as for Righteousness and Peace The Privy Council thus setled dressed and girt becomes of high esteem both for Trust and honourable Employment in great matters The Mint is the very Liver of the Nation and was wont to be the chief care of the Parliament it self in all the dimensions thereof Now the Mint is two ways considered viz. either in the value of the Metal and Money or in the Coinage The first of these and things most immediately concurring therewith the Parliament still retains to its own immediate Survey such as are the inhibiting of exportation of Gold and Silver and of melting of Coyn into Plate or Bullion the regulating of the current of Foreign Coyn the reducing of money both Foreign and Domestick imbased by Counterfacture Clipping Washing c. the regulating of Allay of Gold and Silver the regulating Exchange and such like concerning all which the Reader may please to peruse the Statutes 2 H. 4. cap. 5 6 11 13. 4 H. 4. cap. 16. 3 H. 5. Stat 1. 4. cap. 6. 9. cap. 11. and 2 H. 6. cap. 6. The second Consideration touching the Mint concerned the election and government of the Officers touching the Mint and Exchange or the places where they shall be holden which with some other matters of inferiour nature were left to the Order of the Privy Council either with the King or alone in case of the King's absence or disability A second power given to the Privy Council was in point of Trade and Merchandize Formerly they had somewhat to do therein but still the Parliament set out their bounds In Richard the Second's time the people had liberty of Trade in some Commodities by way of Exportation but the Privy Council might restrain them upon inconvenience to the publick Now the same is confirmed and though it concerned Corn onely yet it was a Precedent that led the way to a much larger power in the Trade of the Staple Commodities of this Island to enlarge or straiten it as they though meet And so they became in a fair way to have a principal power over the Revenues and Riches of this Nation But this lasted not long for within ten years these Licenses of Transportation cost the Merchant so much as he could make little gains of all his care and pains and therefore a rule is set to a general allowance of all Transportation of Corn till the price of Wheat came to a Noble and Barley at Three shillings and no longer This being first made Temporary was afterwards made Perpetual and so gave a restraint unto the power of the King and Council But where no positive restraint was made by any Statute the King and Council seemed to have the sole power left unto them to open and shut the passes of Trade as they pleased For whereas the Commodity of Butter and Cheese was made Staple the King and Council had power to stop the sale thereof notwithstanding that the Law gave full liberty to the Subjects to bring all their Staple-Commodities to the Staple Nevertheless this power in the King is not primitive but derived from the Parliament for they had power over the Kings Licenses and Restraints in such cases as by the several Statutes do appear A third power given to the Privy Council was a power of Summons and Process against Delinquents in cases of Riots Extortions Oppressions and grievous Offences The Summons to be by Privy-Seal the Process Proclamations and for Non-appearance Forfeiture if the Delinquent be of the degree of a Lord if of inferiour rank then a Fine or Out-lawry At the first view the Statute hath an ill favoured Aspect as if it raised up a new Court of Judicature but the time is to be considered with the occasion for it was made for the securing of the peace in a turbulent time And besides the Law carrieth along with it two restrictions which puts the right of Cognizance in the Privy Council to the question First It saveth the Jurisdiction of other Courts and provideth further That no matter determinable by the Law of this Realm shall be by this Act determined in other form than after the course of the same Law in the Kings Court having determination of the same which implieth that some kinds of Riots and Extortions are of so high a nature that though determinable in the Kingsâ—Court yet are they to be determined before the Lords In the next place this Law provideth That such offences as are determinable by the Law of the Realm that is by Jury shall still be so tried Secondly If Conviction be upon Confession or by Certificate in case where by reason of parties and partakings Inquisition by Jury cannot be had there the Lords shall immediately determine the same Lastly If the Certificate be traversed then the same shall be tried in the King 's Bench. But there is another Restriction that undoeth all in effect in point of right because what this Law setleth therein it setleth but for seven years and leaveth the Privy Council to the limits of the Common Law for the future In the mean time the Privy Council may be thought terrible and very high both by this Law and the greatness of the Lords Kings Unkles and Kings Brothers are Subjects indeed but of so high a degree that if a little goodness of nature or publick spirit shine in them they soon become the Objects of admiration from the Vulgar and gain more from them by their vicinity than the King can do at a distance For the Commons of England by the fair demeanour of popular great men are soon won out of their very Cloaths and are never more in danger to part with their Liberties than when the Heaven is fair above their heads and the Nobility serve the King and flatter them Nevertheless as I said the season must also be considered of this power thus by this Law contracted for what the Lords gained not by their popularity the Queen did with her power who now mindful of her contemned beauty and opposition from the Duke of Gloucester against her Marriage removes him out of the way gets the reins of Government into her hand and like a Woman drives on in full career The Duke of York and other Lords not liking this gallop endeavour to stop her pace but are all over-born the Duke taken prisoner and doubtless had pledged the
the Legislative power in point of Doctrine which doubtless issueth from the same principle of Power with the former For if the Church which as a pillar and ground holdeth for the Truth be the company of professing Believers then ought it not to seem strange if these in their representative do intermiddle with this Power or rather duty And for the matter in fact neither did the King challenge this Power nor did the Parliament make any difficulty of Conscience in executing the same and yet there were many Learned and Conscientious men of that number They therefore as touching the Doctrine proceed in the same way with that formerly mentioned concerning the Discipline And a Committee also is by them made of the King and Learned men to set down rules for Faith and Obedience and for the order of the publick Worship of God according to the Word of God. And these rules are confirmed by a Statute so as the King hath a power in the point of Doctrine but it is a derivative power it is a limited power to himself and not to his Successors and to himself and others joyned with him And lastly nothing must be done contrary to the Laws of the Kingdom Secondly The Parliament hath not onely a right to grant and limit this power unto others but also to execute the same immediately by its self And therefore before they granted this power to this Committee whereas formerly the Pope usurped the power to be the Omega to the resolves of all Councils the Parliament intercepted that to their own Jurisdiction in flat opposition to the infallibility of the Roman Chair so far as to disherize some Opinions which by the sentence of that infallible mouth had been marked with that black brand of Heresie And what they did before this Act of Delegation to the King and other Committees for this work they did afterwards as not concluding their own power by any thing that they had so done as may appear by their Censure of the Translation of the Bible made by Tindall By their establishing another Translation By their ordering and appointing what persons might read the same By their qualifying the fix Articles and the like The Parliament then hath a power which they may grant and yet grant nothing away they may limit this power in others as they will and yet not conclude themselves And the King by accepting this limited power must disclaim both the Original and absolute Right and cannot claim the same by right of Headship or Supremacie This was one great Windfal which the Parliament had from the ruines of Rome not by way of Usurpation but re-seizure For their possession was ancient and though they had been dispossest yet that possession was ever under a continual claim and so the right was saved A second that was no less fatal unto that See was the loss of all power over Ecclesiastical persons in this Kingdom For whereas the Popedom had doubly rooted it self in this Nation one way by the Regulars the other by the Seculars the Parliament by the dissolutions of Monasteries c. consumed one to ashes and by breaking the fealty between the other and the Pope parted the other root and the stock asunder and thence ensued the down fall of this tall Cedar in this Nation and Prelacie now left alone must fawn elsewhere or lie along a posture wherein that rank of men can never thrive Up again they peep and espying a King that loved to towre aloft they suddenly catch hold promising their help to maintain his flight and so are carried up and like a Cloud born between Heaven and Earth making the Commons beholding to them for the Kings Sunshine and the King for their interests in the people and for his superlative advancement above them all Now though the English Prelates may think their Orb above the Winds yet were they herein deceived The Parliament had power in their Election before the Pope usurped that to himself now that they are discharged Kings are possessed of them by Conge d'eslire but it is not by way of restitution For Kings were never absolutely possessed of any such power but as Committees of Parliament and by delegation and concession from them and therefore must render an account to them and abide their judgement when they are thereto called Thirdly The Parliament had the disposing and ordering of all the Church-Revenues as the Laws concerning Monasteries Sanctuaries Mortuaries First fruits Tenths Annates and suchlike sufficiently manifesteth Fourthly The Parliament had the power of granting Licenses Dispensations and Faculties setting a Rule thereunto as in case of Non-residency and delegating the power to Committees whereof see more in the Chapter following concerning ordinary Jurisdiction Fifthly The Parliament reserved the Cognizance of all Appeals for final Sentence unto themselves and disposed of all the steps thereunto as unto them seemed most convenient For though it be true in some cases the Archbishop of Canterbury had the definitive Sentence and in other cases the Convocation yet was this but by a temporary Law and this also granted to them by the Parliament which took it away from the Pope and never interested the Crown therein but made the Archbishop and the Convocation their immediate Delegates so long as they saw good Afterwards when they had done their work viz. The determining the Appeal and Divorce of Queen Katherine and some other matters the same hand that gave that power took it away and gave it not to the King or Crown but to Delegates from the Parliament from time to time to be nominated by the King and may as well alter the same and settle the power elsewhere when they please And therefore after the Appeal of the Dowager thus determined and the Sentence definitive thus setled upon Delegates the Parliament nevertheless determined the other Causes of the Marriages of the Lady Anne Bullen and the Lady Anne of Cleve the jurisdiction of the Crown never intermedling therein So as upon the whole it must be acknowledged that however the King was Supreme Head of causes Ecclesiastical yet had he not the definitive sentence in Appeal nor absolute Supremacy but that the same was left to the Parliament Sixthly and lastly what attempts the Parliament had met with partly from the designs of some great men that sought their own ends and partly from the endeavours of these Kings that sought their own height and greatness above their peoples good hath been already related and the utmost issue had been truly stated viz. That the gains have come to the Kings persons and not to their Crown and that therein they have put their Seal to the Law and made their submission to the Parliament as touching both their persons and power Add hereunto that however Henry the Eighth aimed much at himself in his ends in two other main interests that most nighly concerned him yet the chief gain came to the Parliament The
that power that raiseth them also ordereth them to the same ends that they are raised And therefore as the sole power of the Crown doth not the one so neither doth it the other but in cases formerly mentioned And yet in no case though the War be never so absolutely defensive and the Souldiers raised by the Kings own and onely power had the King absolute Authority and Arbitrary power in the ordering of them when they are raised but he must so behave himself to them as to Freemen according to the Laws made by themselves in their Representative in Parliament And therefore are particular Laws made to that end against undue levying and discharging of Souldiers and defaults in paying of them as also against the Souldiers departing from their Service without License or wasting their Arms and such as wilfully absent themselves from Musters as also for the preserving the Castles Forts Ships and Munition for War from being witholden from their due use or from burning or destroying Lastly As touching the charge of the War and pay of the Souldiers It is evident that in all offensive Wars the Souldiers were paid by the Crown although they might be said in some manner to be in order to the defence and safety of the Nation nevertheless where the same was so apparent to the people it was the common course in these times to have often Parliaments and often Subsidies which were no less in a good measure satisfactory to the Crown for the Charges of the War than Testimonies of the Peoples good acceptance of the government of Affairs and so accepted at their hands The particular Records will warrant all this For of all the Wars in these times that of 88 excepted not any of them were ever managed at the peoples charge by Contribution but by Retribution So were these times wherein the people looking upon the Crown as under a kind of infirmity of Childhood or Womanhood did therefore bear a kind of compassionate regard thereunto without jealousie at Prerogative and could condescend and allow the Crown its full Grains and somewhat more yea more than was meet for some other Prince to desire or the People to give up And yet more happy were they wherein the Crown knew no interest but in dependance upon the peoples good and so understanding were rightly understood CHAP. XXXIX Of the Peace IT is but little that can be said of Peace in these times wherein so little freedom was found from Foreign pretensions and Intestine irregularities or both and yet the people were never more resolved against the former nor secure against the latter and had God to Friend in all But most apparently was this observable in the times of Queen Elizabeth whose Government took up four parts of five of these times whereof we now treat She was a compleat Conquerour of War and Treason and therein the true Inheritor of the Fate of her Grandfather Henry the Seventh with advantage for she out-faced all dangers by her onely presence having thereof had more experience than any Princes that ever possessed her Throne yet she was wise enough to beware against the future considering her condition to be the last of her Line that the next behind her was rather likely to trip up her heels than support her Train that the Pope narrowly watched every opportunity the distance between him and the Throne being no greater than the breadth of her onely person It may well therefore admit of excuse if the Statute of the 25 of Edward the Third concerning Treasons did not give satisfaction although therein if she were sollicitous her Subjects were more Some kinds of offences were made Treason by Statute-laws which formerly appeared not such because they appeared not at all and yet in the opinion of her people the Queen was too slack in the making and more slack in the execution of them The people had engaged themselves deeply against the Queen of Scots and it was not safe for them to go back they go yet deeper and without any positive Authority leading the way they enter into an Association amongst themselves for the Queens safety and it was well liked by the Queen because she knew it was well meant although by some it was mistaken Nevertheless to take away all exception a Law is made in pursuance thereof and so the work is reduced under an ordinary rate though the publick danger was such as might well have digested an extraordinary undertaking I intend not to enter into the particulars of these Treasons of the new stamp because they are but temporarie and in their ultimate reach tend onely to the safeguard of the Queens person in order to the intentionary sence of the Statute of 25 Edw. 3. although not within the explicite words of that Law. Onely this is observable that though the times were full of malice yet was not all malice looked upon as fatal nor every expression thereof Treason or privity thereto although the Crown it self was not a little concerned therein but reduced to an inferiour degree called Misprision as if they were willing rather to construe undertakings for mistakings and thereby over-look much of the Malignity of these Times than to make strict inquisition into every Punctilio of offence As touching Felony the rules were various some were of a new Original as that of Gypsies others formerly such afterwards laid aside are now revived with advantage as Conjuration and Buggery But imbezzelling by Servants of their Masters Goods made Felony for a time by Edward the Sixth is by Queen Elizabeth made perpetual Some Felonies are made such within a certain precinct as Man-stealers and other Crimes upon the Scotish Borders Others formerly made Felony are now unmade as that concerning Prophecies and divers formerly protected under the refuge of Clergie are now barred of that reserve such as are those that command counsel or hire others to commit petty Treason Murder or Robbery 4 5 Phil. Mar. cap. 4. Stealers of Horses Geldings or Mares 2 E. 6. cap. 33. Robbers of Houses Booth or Tent by Day or Night 5 E. cap. 9. Pick pockets or Cut purses 8 Eliz. cap. 4. And Woman stealers 39 Eliz. cap 9. And some Crimes made Felony impeachable onely within a certain time and not upon a cool suit So as upon the whole heap of Account the zeal of the times will appear to be more hot by how much iniquity appeared more hainous and that wicked men waxed worse as the times waxed better More particulars of this nature and of other Offences of inferiour note might be superadded as also of Laws of alteration and amendment of Process and Trial and of Common Assurance and Conveyance of Estates of particular Revenue All which might be insisted upon if need were to clear out yet further the conclusion of the whole matter which I hasten to accomplish led on by a natural motion that grows in speed the nigher it comes