had they might let to Farme And then wherein are the People the better for these Lawes Seeing its all one for them to be oppressed by the Sheriffe immediately and by the Proxie For preventing of this inconvenience another Law is made That the Sheriffe shall not let his Bailywicke to Farme nor be Nonresident and to this he must binde himselfe by Oathe So as now the Sheriffe is double girt and may be fairely ridden without danger to the King or People But men ride horses for ease and pleasure and he that must bend his minde alwayes to watch his horses motion will choose rather to goe on foote and therefore Henry the Fifth renewed the Law of Richard the Second that Sheriffs shall be but for one yeare and then not to be chosen again nor serve for three yeares next following This Order continued for the space of eight yeares within which time Warre and Pestilence had consumed so many of the richer sort of People that a Dispensation is granted that Sheriffs may continue in their places for foure yeares And it was above twenty yeares after ere the Stocke was recruted againe after which time the substance of the former Statutes of Edward the Third Richard the Second and 1. Henry the Fifth is revived againe with a penaltie upon the Sheriffe his Deputy or Clerke that shall execute that place above one yeare so the custome of holding that Office tenne or twelve yeares by occasion of the Dispensation for foure yeares was laid aside But the Cure would never be perfect so long as Sheriffs held by Inheritance For it was easie to finde new Deputies but not to lay downe old Customes nor could it be lasting unlesse the penalties also had beene annexed to the particular crimes For a Sheriffe before he is a yeare old by experience formerly had becomes too cunning for all these Lawes and therefore Lawes are made also against the ordinary corruption of these places such as are extorting of Fees false making of Juries false returnes of Writs c. and damages in such cases given to the party wronged and when all is done he is not trusted with taking of Indictments Thus with much adoe a Sheriffe is made a tollerable Officer and his place by Degrees so hedged in that what was in former times hard to plucke up is now become hard to sett CAHP. XXI Of Justices and Lawes concerning the Peace THe faint title of Henry the fourth to the Crowne made him ever tender of the Civill Peace without breach whereof he was sure to be quiet in the Throne he undertooke not this worke by any superlative power from and by himselfe but useth the help of the Parliament and Lawes wherein he was industrious pretending love of Unity amongst his People which neverthelesse he liked not unlesse in order to quiet between himselfe and them The former way of Justices of Peace he followed close reducing the Persons to their ancient qualifications The most sufficient Persons Inhabitants in the County worth at least twenty pound yearly unlesse they be Lawyers or such as are Justices in Corporations nor is the King troubled or trusted with the naming or electing of these men but the Chancellor or the Kings councell so as now by Law the King can neither be Justice nor make Justice Jure proprio but as his interest with the Councell is more or lesse prevalent and that power that first gave it to the Crowne the same power tooke it away or imparted and placed it elsewhere But as touching the Worke or Power of the Justices themselves it grew exceedingly much wheerof was onely of inquiry and to make Certificate as of Herisie Treason Falshood of Sheriffs c. But more of Oier and Terminer as in Case of Watches deceitfulnesse in Trades as of making arrow heads guilding of Mettall tanning of Leather inbasing of Silver selling of waxen Images and Pictures c. for the superstition of these times was such as these petty Gods were not set at so high a Price by the Seller but at a higher price by the Buyer the Parliament therefore set a truer vallue of them Viz. For the Wax so much as the Wax is worth by weight and but foure pence for the Godhead so as it seemes the Parliament was not very superstitious in their House what ever they were at Church Further-more the Justices of the Peace had power to punish deceit in Measures Weights forcible entries and Detainers In many of which Cases the Penalty being fine and imprsonment became a snare to many of the Justices especially such as were of the greater and higher ranke who having Castles of their owne under colour of justice imprisoned Delinquents in their owne Castles and ransomed them at their owne pleasure which proved a great oppression to the People and occasioned a Law that no Justice should commit any Delinquent to other then the County Goale saving Franchises to the Lords Those times are happy when justice waites not altogether at Court but growes up in the feilds and Justices of Peace as the Kings armes upon the Royall Mace are terrible onely to the bad and not as they are pictured before an Ale-house door to invite men to transgresse The Lawes for the preservation of the Peace concerne either punishment of Crimes committed or prevention of them from being committed There is a succession of Crimes as of men and ages because the Scripture tells us that the hearts of all are fashioned alike yet it is with generations as with men some incline to some Crimes more then other and that is the reason that the title Treason sometimes is set forth in Folio sometimes in a lesser Volume It s evident in Story that the violent times of Richard the second had raised the vallue of that amongst other offences above measure not long before his time his Father had reduced that wilde Notion of Treason to a certaine rule that formerly wandred in a Wildernesse of opinion But Henry the fourth either to save his own Stake or to take the People or both reduced it againe to the Statute rule of Edward the third and made void that Statute of his Predecessors which had made a former Act of Parliament and all the service thereby done Treason The dimensions of Treason thus clearly limmed and declared taught ill disposed mindes to keep out of the Letter and yet to be bold with the sense counterfeit Money they durst not yet to diminish the same they thought came not within the circle and so it became a common greivance till a Law was made that all purposed impairing of Mony shall be Treason And so the Parliament held forth to all men that they had a power to declare Treason without the bounds of the Statute of Edward the third The like power it held forth in the time of Henry the sixth for men knew that Burglary and robbery were mortall crimes they would no
granted prohibition enjoyned the Ordinary to grant absolution where it saw cause neverthelesse in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the levying of Tenths In the next place the Prelacy had not this Ecclesiasticall jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not only to Bishops but to Chancellors Vicars generall Commissaries being Doctors of the Law and not within holy Orders and limiting their jurisdiction in cases concerning the Papall jurisdiction and their manner of sending their processe and Citations to draw men from their proper Diocesse and also their inordinate Fees in cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine right and lived they cared not by what wrong But the Laity inclining too much to the new Religion as then it was termed refused to yeeld one foot unto their pretentions And so like two Horses tied together by their Bits indeavor after severall courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a horse-man that neither of them could unhorse him till Death laid him on the ground And thus was the Romane Eagle deplumed every Bird had its own feathers the great men the Honours and Priviledges the meaner men the profits and so an end to Annates Legatine levies Peterpence Mortuaries Monestries and all that retinue the vast expences by Bulls and Appeales to Rome to all the cares expences and toile in attendance on the Romane Chaire The beginning of all the happinesse of England CHAP. XXXI Of Judicature THese two Kings were men of towreing Spirits liked not to see others upon the wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the eighth whose motion was more eager and there was no comming nigh to him but for such as were of his own traine and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice then the Nobility had Both the Kings loved the aire of profit passing well but the later was not so well breathed and therefore had more to do with Courts which had the face of Justice But behinde were for the Kings Revenue Such were the Court of Requests of meane originall meane education yet by continuance attained to a high growth The Court of Tenths and first fruits The Court of Surveyors The Court of the Lord Steward of the houshold The Court of Commission before the Admirall The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard and that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the losse of that grand liberty of that Countrey formerly a province belonging to this Nation and now by Henry the eighth incorporated into the same and made a Member thereof and brought under the same fundamentall Law a work that had now been long a doing and from the time of Edward the third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crowne Then upon occasion of their rebellion by losse of many of their wonted liberties Afterwards Henry the eighth defaced the bounds of diverse the ancient Counties and setled them a new and the bounds of the Marches also and appointed Plees in Courts of Judicature to be holden in the English tongue And last of all reunited them again to the English Nation giving them vote in Parliament as other parcell of the English Dominions had True it is that from their first submission even unto Edward the first they were summoned unto Parliament and had vote there but onely in order to the Interests of their own Countrey now and henceforth they possesse one and the same vote as English men Secondly as Courts and Judicatories multiplied so some also of those that were ancient enlarged their Jurisdiction especially such of them as most nighly related to Prerogative amomgst others the privy Councell leads the way Who now began to have too much to do in a double capacity one at the Councell Table the other in the Star Chamber For now their Power began to be diversly considered In their first capacity they had too much of the Affaires of the Common Pleas in the later they had too much of the Crown Pleas both of them serving rather to scare men from doing wrong then to do any man right And therefore though some men might seeme to have some recompence yet the greatest gain fell to the King and his Courtiers and thus became Majesty or State or Prerogative to be more feared then beloved What the Power of the Councell was formerly hath already beene manifested that which both these Kings conspired in and whereby they gained more Power over the People then all their Predecessors was this that other Kings stood too much upon their own leggs these leaned much upon the Lords and gained the Lords to stick close to them and in this they had both the Kings Love and the Peoples Leave who now disjoynted upon severall Interests especially that of Religion must be contented to let go that which they had no heart to hold And thus they obtained a judicatory Power over the people like that of great men whose Censures are commonly above capacity and not like to that of the Peers This was begun in Henry the sevenths time who taking occasion to complain of corruption and neglect in ordinary Trialls of the Common Law gets the People to yeild to the Councell or some of them a Power of Oier and Terminer by examination upon Bill or information in matters concerning Maintenance Liveries Retainders Embraceries corruption in Sheriffs and Juries Riots and unlawfull Assemblies Crimes all of them of the same Blood with rebellion which the King as much hated as the thought of his Title to the Crowne and therefore would have it feared as much as the punishment by such a mighty Power and a Triall of a dreadfull Nature could effect A Triall I say wherein both the guilty and the guiltlesse adventure their whole Estates against the edge of the arbitrary wills of great men of unknown Interests in an unknown way at unknown places having no other assurance how or when to come off but a Proclamation to tell the People that the King above all things delighted in Justice A bitter pill this was for the People to swallow yet it was so artificially composed that at the first taste it gave a prety rellish the King delights in Justice the
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
the power that made them I shall leave the particulars to be inquired into by them that shal minde it elsewhere and only touch so much as shall reflect upon the maine Government This power was executed by Deputies diversly according as the times and opportunities were for Warr or peace and either transitu or partu What was done in time of Warr or whiles this Shipp is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further then this that in the first times Kings were wont to divide the worke of judicature and of Warr into severall hands The power of Warr and Peace they committed unto men of approved courage and Skill in that service and therefore generally not to the men of highest ranke who had neither minde nor Skil for a worke of such labour dyet and danger this power passed under divers names sometimes by grant of the custody of the Sea coasts somtimes of the parts and Sea coasts somtimes by being made Captain of the Sea men and Marriners and somtimes Admiral of the Ships It was a great power and had bin much greater but that it suffered a double diminution the one in the time for three or four years commonly made an end of the command of one man and at the best it was quam diu Regi placuerit the other diminution was in circuit of the power for all the Maritine coasts were not ordinarily under the power of one man but of many each having his proper precinct upon the South or North East or Western shotes and under the title of Admirall in the times of Ed. the first and forwards who brought that title from the holy Land neverthelesse about the end of the times whereof we now treat the custody of the whol Sea began to settle in one hand under the title of Admirall of the English Seas and the place was conferred upon men of the greatest ranke and so continued ever afterward The power of jurisdicton or judicature all this while remained distinct and it seemes was settled in part in the power of the Sheriffe and Justices For by the Law the Sheriff and Justices had cognisance of matters betweene the high water and the low water marke and what was done Super altum mare was within the directory of the Admirall these were but few things and of small considerablenesse the principall of them being concerning Warr or peace and those only within the English Seas But after Edward the third had beaten both the French and Spaniards at Sea the people grew much more towards the Sea and became so famous that the greatest Lords thought the Regiment of Sea affaires worthy of the best of their ranke and were willing with the title of Admirall whiles they left the worke to others and so the Admirall became a person of more honour and lesse worke then he had been formerly The greatnesse of the honour of this place thus growing soone also began to contract greatnesse of power beyond what it had formerly and this was principally in matter of jurisdiction For not contented with the power of a cheife Justice of Warr and Peace within the Seas which was his proper dominion the Lord Admirall gained the same within the low water marke and in the maine streames below the next Bridge to the Sea and in all places where Ridells were set and yet these places were within the body of the County Nor did he indeavour lesse to gaine in matters of distributive justice for although he had a legal jurisdiction in things done upon the open Sea so farr as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no lesse difficult to keep this power within its own bounds then the watry Element upon which it floated but it made continual waves upon the franchise of the Land and for this cause no sooner had these great men savored of the honour and authority of that dignity but comes a Statute to restrain their Authority in the Cognisance of Cases onely unto such matters as are done upon the main Sea as formerly was wont to be and within two yeares after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admiralls power extended even to the high water marke and into the main streams And this leadeth on the next consideration Viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admirall is as I formerly said a Justice of Peace at Sea maintaining the Peace by Power and restoring the Peace by setting an Order unto matters of Difference as well between Forrainers as between the English and Forrainers as may appeare by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admirall is the Judge to determine according to Law and Custome Now as subservient unto both these he hath authority of command over Sea men and Ships that belong to the State and over all Sea men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and the Realme and during the said voyage but this he cannot doe without expresse Order because the determining of a voyage Royall is not wholly in his power Lastly the Lord Admirall hath power not onely over the Sea men serving in the Ships of State but over all other Sea men to arrest them for the service of the State and if any of them run away without leave from the Admirall or power deputed from him he hath power by inquiry to make a Record thereof and certifie the same to the Sheriffs Maiors Bayliffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Lawes not onely the power of the Admirall is declared but the originall from whence it is derived namely from the Legislative power of the Parliament and not from the single Person of the King or any other Councell whatsoever But enough hath been already said of these Courts of State in their particular Precincts One generall interest befalls them all that as they are led by a Law much different from the Courts of Common Law so are they thereby the more indeared to Kings as being subservient to their Prerogative no lesse then the Common Law is to the Peoples liberty in which condidition being looked upon as Corrivalls this principall Maxime of Government will thence arise That the bounds of these severall Lawes are so to be regarded that not the least gap of intrenchment be laid open each to other least the fence once broken Prerogative or Liberty should become boundlesse and bring in
the severall Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance the leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffes Coroners and Leets were now grown soure with Age having attained courses by common Practice differing from Oppression onely in name and yet were the times so unhappy as by these courses they had obtained fovour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oier and Terminer and having learned how to make capitall offences pecuniary found such sweetnesse as they used not to be weary of their places though the Countrey grew weary of them and therefore disliking uncertainties in such matters of benefit they cannot rest till they obtaine more certaine settlement in their places some for yeares others for life and some for ever The disease thus contracted by degrees the cure must be accordingly first the Sherifwicks much dismembred to please the Court Favorites and fill the Kings privy purse and all raised to the utmost penny of the full and beyond the just vallue A Law is made to restore the severall Hundreds and Wepentakes to the Sheriffs and their Counties and all of them are reduced to the old rent and it is likewise provided that none shal execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer dammages for injustice by them done And that no Sheriff shall serve in that place above one yeare and then not to be chosen againe for that service till three yeares be past which later clause was only a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their blood but whom they trusted yet the Sheriffe came not so nigh their skinne nor yet so nigh their freeholds as anciently they had done for that their power in judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of justice and his place valuable more then formerly it was holden convenient that such as had the cheife power of judicature at Westminster Viz. the Chancellor Treasurer Cheife Baron and the two cheife Justices should nominate the man that should be their Servant and in the Parliament neverthelesse interposed in that Election as often as they saw cause Secondly as touching Causes criminall which more ordinarily come within the Cognisance of these Courts They generally held the same regard in the eye of Law in these times that they had done formerly neverthelesse in two crimes these times wrought diversly urging the edge of Law against the one and abating it as to the other The later of these is commonly called Petit Treason which is a murder destructive to the Common-wealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families doe consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children but by this Law of 25. E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have beene as well laid aside as divers others were but that in these times much is to be yeilded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable This reducing of Treason into a narrower ground made the Regiment of Fellonies to swell A hard thing it was in a Warring time for men to conceit themselves well drest untill they were compleatly armed Some used it for a Complement and amongst others honest men had as good cause to use it as some that were ill affected had a bad and of the last sort some did aime at private revenge though many aimed against the Publique quiet But however the intentions of men thus harnessed might be different the lookes of them all are so soure that its hard to know a man for Peace from a man for Warre And therefore the People were now so greedy after Peace as they are ready to magnifie or multiply all Postures of Armed men into the worst fashion being well assured that the readiest way to keep themselves from the hurt of such men is to have none of them at all But Edward the Third had more need of them then so and will therefore allow men to ride Armed but not to Troope together to rob kill or imprison any man and if any Person did otherwise it should be Fellony or Trespasse but not high Treason All this was in favour to the People and yet it was not all for when Mercy groweth profuse it becomes cruelty Murder is very incident to times of Warre yet is an Enemy to the Peace of so high a nature that though the Kings pardon may doe much yet both King and People declare it an impardonable crime by the Common Law and that the Kings Prerogative shall not extend so farre as to Pardon the same This justice done to the party dead was a mercy to them that were alive a means to save blood by blood-shed and not so much by the Kings Grant as by his Release One thing more in these cases of blood the people obtained of the King which they had not so much by Release as by Grant and that was the taking away of Englishire an ancient Badge of the Imperiall Power of the Danes over the Saxons and which had either continued through the desidiousnesse of the Saxons in the times of Edward the Confessor unto the Normans time or by them taken up again and continued untill these times that Edward the Third was so farre desirous to declare his readinesse to maintaine the Liberties of the people as to be willing to restore them where they failed and in particular tooke away the manner of Presentment of Englishire blotting out the Title and Clause concerning it out of the Articles of inquiry for the Judges Itinerant And thus whether Native or Forrainer all men are now made in death equall and one Law serves all alike Next unto blood these times grew more sensible of Ravishments then former times had done For though they had determined a severe Penalty against so foule a Crime and made it in the nature of Fellony capitall which was enough to have scared any man from such attempts yet for the proof of the matter in Fact much rested upon the will of the Woman which for
THE CONTINUATION OF AN HISTORICALL DISCOURSE OF THE GOVERNMENT OF ENGLAND Vntill the end of the Reigne of Queene ELIZABETH WITH A Preface being a Vindication of the ancient way of Parliaments in ENGLAND By Nath Bacon of Grais-Inne Esquire LONDON Printed by Tho Roycroft for Matthew Walbanck and Henry Twyford and are to be sold at Grais-Inne Gate and in Vine Court Middle Temple 1651. The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and Church-government during these times fol. 146. XVIII Of the Court of Chancery fol. 162. XIX Of the Courts of Crown Plas and Common Law fo 165 XX. Concerning Sheriffs fol. 168. XXI Of Justices and Lawes concerning the Peace fol. 170. XXII Of the Militia during these times fol. 175. XXIII A short survey of the Reignes of Edward the fourth Edward the fifth and Richard the third fol. 181. XXIV Of the Government in relation to the Parliament fol. 187. XXV Of the condition of the Clergie fol. 191. XXVI A short sum of the Reignes of Henry the seventh and Henry the eighth fol. 194. XXVII Of the condition of the Crowne fol. 202. XXVIII Of the condition of the Parliament in these times fol. 223. XXIX Of the power of the Clergy in the Convocation f. 229. XXX Of the power of the Clergy in their ordinary Jurisdiction fol. 232. XXXI Of Judicature fol. 241. XXXII Of the Militia fol. 245. XXXIII Of the Peace fol. 253. XXXIV Of the generall Government of Edward the sixth Queen Mary and Queen Elizabeth fol. 259. XXXV Of the Supream power during these times fol. 268. XXXVI Of the power of the Parliament during these times fol. 277. XXXVII Of the Jurisdiction Ecclesiasticall during these last times fol. 283. XXXVIII Of the Militia in these later times fol. 290. XXXIX Of the Peace fol. 297. XL. A summary Conclusion upon the whole matter fol. 300. A PREFACE CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND THE more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this second part for some time but observing the ordinary humor still drawing off and passing a harsher censure upon my intentions in my first part then I expected I doe proceede to fulfill my course that if censure will be it may be upon better grounds when the whole matter is before Herein I shall once more minde that I meddle not with the Theologicall right of Kings or other Powers but with the Civill right in fact now in hand And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power and others even to adnull the right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet licet so making the breach much wider then at the beginning I shall intend my course against both As touching the Commons right jointly with the Lords it will be the maine 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 finde published in a late Tractate concerning that matter and so proceede 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 Judiciall power of the Parliament rested wholly in them lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not knowne nor heard of till punier times then these This last will be granted Viz. That these severall titles of Knights Citizens and Burgesses were not known in Parliament till of later times Neverthelesse it will be insisted upon that the Commons were then there The second will be granted but in part Viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor the whole The first is absolutely denyed neither is the same proved by any one instance or pregnant ground in all that Book and therefore not cleerly 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 Booke are by him supposed to concerne Parliaments or generall Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodicall Conventions for Church matters whereunto the poore Commons he well knoweth might not come unlesse in danger of the Canons dint or if they did yet had no other worke there then to heare learne and receive Lawes from the Ecclesiasticks And the Lords themselves though present yet under no other notion were they then as Councell to the King whom they could not cast out of their Councell 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 ayde of the Parliament And it is no lesse true that Kings with the Lords did in their severall ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in Warr to be Lords in peace but hard to lay downe that power at the foot of Justice which they had usurped in the rude times of the Sword when men labour for life rather then liberty and no lesse difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrey-men till peace by continuance had reduced them to a little more sobriety Nor doth it seeme irrationall that private differences
at a distance and after long delay But Edward the Third sums up all into one breif and brings a compleate modell thereof into the World for future Ages to accomplish as occasion should lead the way The cours was now established to have Justices settled in every County there to be resident and attending that Service First they were named Guardians or Wardens of the Peace but within a few yeares altered their Title to Justices First they were chosen out of the good and lawfull men of each County After that they were two or three chosen out of the worthiest men and these were to be joyned with Lawyers Then was one Lord and three or foure in each County of the most worthy men adjoyned with Lawyers Afterward in Richard the Seconds time the number of Justices in each County might attain to the number of six and no Steward of any Lord to be admitted into the Commission but within half a yeare all is at large so be it that the choise be out of the most sufficient Knights Esquires and Gentlemen of the County Again within two yeares the number in each County is set at eight yet in all these the Judges and Serjeants were not reckoned so as the work then seemeth not so much as now a dayes although it was much of the same kinde and yet it grew up into that greatnesse which it had by degrees Before they were settled by Edward the Third there were Custodes pacis which might be those whom we now a dayes call the High-Constable of the Hundred whose work was purely Ministeriall Afterward about the second yeare of Edward the Third the Guardians of the Peace had power of Oier and Terminer in matters of riding Armed upon the Statute 2. Ed. 3. After that they have power of inquiry by Indictment in certain Cases within foure yeares after they have power of Oier and Terminer in Cases of false Jurors and maintenance and about tenne years after that they obtained like power in matters of Fellony and Trespasse The way of Commissions in case of life and member thus opened another occasion of Commission offers it self for a determinative power in case of offences against the Statute of Labourers and the Cognisance hereof is soon settled upon Commissioners in the Counties specially chosen for that Service which questionlesse as the times then stood was as commendable work as it was necessary For Souldiers were so many that Labourers were very few and those that once are accustomed to Armes thinke ever after meanly of the handycraft nor will they ever stoop thereto after their Spirits are once elivated by Mastery of Adventures And secondly those few Labourers that remained of the Sword Plague and other disasters of these wasting times understood their advantage and set a value upon their labours far above their merit apprehending that men would rather part with too much of a little then to let their work lie still that must bring them in all they have but these Commissioners lasted not long though the worke did The Justices of Peace are looked upon as meet for that service and its a vain thing to multiply Commissions where the work may be done by one that before this time had obtained an additionall Cognisance of all Causes of Riots Batteries wandering dangerous Persons and offences in Weights and Measures and in Purveiance To them I say all this work concerning Labourers is also committed by the Parliament and herewith a way was laid open for Crimes of greatest regard under Fellony to be determined by triall in the Countrey according to the course of Common Law The issue of all which was not only ease to the People but a great escape from the rigor of the Councel-Table in the Star-Chamber and the Kings-Bench at Westminster on the one side and also from the gripe of the Clergy on the other who hitherto held the Cognisance of the Markets in Weights and Measures to themselves This modell so pleased all men that Richard the Second that was pleased with nothing but his owne pleasure gave unto the Justices of Peace yet further power to execute the Statute at Northampton against riotous ridings and to settle the wages of Labourers and Servants to punish unlawfull Huntings by the meaner sort of people and regrators of Wooll fals Weights in the Staple unlawfull wearing of Liveries and unlawfull fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of the Peace grown to that heighth in these and other things that it undermined not onely the Councel-Table and Kings Bench but the Commissions of Gaole delivery and of Oier and Terminer so farre forth as their work was much lesse then formerly for Neighbous in cases of Crime are better trusted with the lives and estates of men then strangers so as in all this the people are still the gainers The manner of Judicature by these Justices of the Peace still remains nothing appears by any Statute in these times that one Justice of the Peace might doe alone but record a forcible detainer although questionlesse in point of present security of the Peace and good behavior by the intent of the Statutes he might doe many things but in Cases of Oier and Terminer all must be done in publique Sessions which the Justices of the Peace had power to hold by Commission onely untill the thirty sixth year of Edward the Third and ever after that they held their Sessions by vertue of the Statutes and had power to determine divers things in their Sessions according to discretion These were remedies after the Fact now see what preventing Physick these times afforded One thing that much irritated the spirits of men into discontents was false newes or slanderous reports raised and spread amongst the great men For in these times the Lords were of such considerable a power as the vexation of one Lord proved the vexation of a multitude of the meaner sort and though the Statute of Westminster the 1. formerly had provided against such tales yet it touched onely such as concerned discord between the King and People although by implication also it might be construed to extend further But Richard the Second willing to live in quiet that he might injoy his pleasure would have the people know their duties in plain words and agreed to a Law that all such as published such false newes tending to sow strife between the great men should be imprisoned untill the first mover was found and if he were not found then the Relator should be punished by advice of the Councell So much power was then given to the Councell what ever it was Thus the seed was choked or was so intended to be though every passion was not thus suppressed For some angers conquer all feare and will hold possession come what will In the next place therefore provision is made against the first actings in sorting of parties by
tokens and liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrells upon pain of Fine and Imprisonment and the triall to be before the Justices of Assize which it seems was in affirmance of former Lawes as by the Preamble of the Statute doth appeare though the Lawes themselves are not extant About fifteen years after it was by sad experience found that the Lords maintained quarrells by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their meniall Servants and it s ordered that the Justices of the Peace shall make inquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of parties after they are sorted For the humors may so abound as nothing will keep them in they must either breake out into a sore or a long sicknes of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all Persons to ride Armed unles in some particular Cases of executing Justice or guarding the Person of the King or his Justices and such like And if men will be so adventerous as to outdare Law by publique force Troopings together and Riotous ridings Another course is taken not by Commission of the Peace but rather of Warre directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them untill the Goale-delivery though no Indictment be found thereof untill the Goale-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additionall power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the power to the Commission and be it a Commission for Peace or Warre it is Originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous wayes Viz. Castles and Goales out of the Custody of private hands and restoring them to their Counties For Goales and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of Warre from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaole-delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Assilum to defend them against the Law And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoake of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriffes Custody by Act of Parliament who questionlesse hath the power to dispose of all places of Strength whether in order to Peace or Warre and could not dispose them into a more fafe and indifferent hand then the Sheriffes who is as well the Kings Officer as the Kingdomes Servant and much intrusted by the Law in the execution of its owne power And thus is this Nation now prepared for a settled Peace a Condition that is long in ripening and soon rotten unlesse it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he inforces into Forrain Countries and himselfe holds on his careere over hedge and ditch into Ireland where under pretention of holding Possession of that Kingdome he lost England and whiles he playes his game in that Country another playes King by your leave in this and steps into the Throne teaching the King thereby this lesson though too late That Nonresidency is dangerous for a Preist but unto a Prince fatall unlesse his Subjests be fast to him when he is loose to them CHAP. XIII A view of the summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their severall Reignes HE that played this pranke was the banished Duke of Hertford sonne of John of Gaunt and by his death now become Duke of Lancaster by Title and as the times then were it proved not hard to get more For in uncertain Common-wealths it is an easie thing for a man of opinion that hath lesse then his due to get more then he ought As sonne of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the Kings absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Forraine power or other help saving the advice and interest of Arch-Bishop Arundell who was his Companion in suffering Partner in the Cause and no lesse welcome to the Clergy then the Duke himself was to the people and so gained power to the Duke though he brought none Upon their Arivall the aspects of all are benigne the Dukedome waits for him and in that as in a mirrour he beholds the way fair and easie yet further it pities him to see the Kingdome so torne in peices and spoyled The People knew him able and hoped him willing to amend all they offer him their Service which he accepts and therewith the Crowne so hard a thing it is for to put a stop to a Conquerour in his careere By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a designe that in the proof was more easie then commendable and which being effected cost more skill to make that seem fair which was so foul then to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from dispute whiles Power holds but it lookes better from a Forrain Enemy then one sworn to the English Crowne and therefore after that had served his turne he disclaymed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessour he glanced upon but durst not adventure it too deep into the Peoples consideration whose Ancestors had formerly over-ruled the Case against King John He then stayed upon a concealed Title from a concealed Sonne of
Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man its true her Commissions of Lord Lievtenancy wanted that limitation in words yet they carried the sense for if the Crown were bound by the Law the Lord Leivtenants were much rather but the danger arose after the death of Queen Elizabeth for when King James came to the Crown under colour of pleasing the People and easing them of a burthen he pleased himself more and made the yoke upon the People much more heavy in the conclusion for where no declared Law is there the discretion of them that have the care lying upon them must be the rule thus came the Scottish blood to have pretentions to a greater Prerogative then all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Lawes of that kinde and then the taking away of the Statute of Q. Mary takes away all declared Law as to that point But more truly it may be inferred that if all Statute-Laws be taken away then the rule of Tenures at the Common Law must remain in force and no other Nevertheless this Statute of Queen Mary though in force for the present was not a generall rule for Armes in all places of this Nation for the Marches of Scotland were a peculier jurisdiction as to this point They stood in more constant need of Armes then any other part of this Nation in regard of their uncertain condition in relation to their Neighbouring jurisdiction and therfore were the Farmes of these parts generally contracted for upon a speciall reservation of Armes for each particular which being now decaied are again reduced by Queen Elizabeth to their ancient condition in the time of Henry the eighth A second thing which may come under this generall consideration of arming is the arming of places by making of Forts and Castles which was not in the immediate determinate will of the Crown to order as it pleased for though they may seem to be meanes of Peace and present safety yet they are Symptomes of Warr and in the best times are looked upon with a jealous eye especially such as are not bordering upon the Coasts Because that Prince that buildeth Castles within the Land is supposed to feare the Neighbourhood This was more especially regarded in the dayes of Phillip and Mary For when that marriage was to be solemnized it was one of the Articles to provide for the safety of such Forts and Castles as then were maintained to the end they might be preserved free from usurpation for the Use Profit Strength and Defence of the Realme onely by the naturall borne of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Phillip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Legies for ten years and only within the Counties bordering upon Scotland and these perticularly named in the Statute so as the Crown had not power to build in all places nor to any end they pleased nor to place therein or betrust the same to whom it would Nor yet had Edward the sixth that absolute power although not ingaged in forrain interests as his sister Mary was and therefore whereas Castellanes had been made for life by Patent and so the absolute power of the Crown was barred in the free disposal of the same during such time The Parliament gave the King power to remove such as were not liked or thought faithfull to the publique interest although they gave no cause of Seisure by any disloyal act The like also may be observed of the Ships and Ordnance for they also do belong to the State as the Jewels of the Crown and therefore upon the Marriage of Queen Mary they also are by Articles preserved and saved for the use profit strength and defence of the Realm by the natural born of the same Thirdly as touching the ordering of the Souldiery the matter is not much to be insisted upon for little doubt is to be made but 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 b be never so absolutely defensive and the Souldiers raised by the Kings own and onely power yet hath not 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 Free-men according to 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 Licence 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 with-holden from their due use or from burning or destroying Lastly as touching the charge of the War and pay of the Souldies It s evident that in all offensive Wars the Souldier was 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 then 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 happy were these Times wherein the People looking upon the Crown as under a kinde of infirmity of Childhood or Womanhood did therefore bear a kinde of compassionate regard thereunto without jealousie at Prerogative could condiscend and allow the Crown its full Grains and somewhat more yea more then was meet for some other Princes to desire or the People to give up and yet more happy were they wherein the Crown knew no interest but in dependence upon the People 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 forrain pretentions and intestine irregularities or both and yet the People were never more resolved against the former nor secure against the later 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